Inghams Enterprises Pty Limited

[2024] FWCA 3812

[2024] FWCA 3812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Inghams Enterprises Pty Limited

(AG2024/3251)

INGHAMS ENTERPRISES (TAHMOOR) AND AMIEU ENTERPRISE AGREEMENT 2023

Poultry processing
DEPUTY PRESIDENT GRAYSON	SYDNEY, 31 OCTOBER 2024

Application for approval of the Inghams Enterprises (Tahmoor) and AMIEU Enterprise Agreement 2023

Introduction

1. Inghams Enterprises Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Inghams Enterprises (Tahmoor) and AMIEU Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 September 2023 and the Agreement was made on 12 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. The NERR provided to employees on 22 September 2023 was the version of the NERR applicable to enterprise agreements with a notification time prior to 6 June 2023. The Employer provided submissions that this matter constituted a minor technical error and that employees were not likely to have been disadvantaged as a result.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

National Employment Standards (NES) Precedence Term

1. The entitlement to compassionate leave provided by Clause 5.5.2 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household. This may not be consistent with per s.105(1)(b) of the Act, or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

1. The Agreement contains a casual conversion clause at 3.6.4 which reflects the Act’s scheme prior to 26 August 2024. However, the casual conversion clause does not incorporate the changes available to casual employees employed after this date, and which take effect from February 2025 (which occurs during the Agreement’s nominal term).

1. Clause 2.4 provides that an employee who is absent from work for three days and who is unable to satisfy the Company as to the reasonableness of their absence, will be deemed to have abandoned their employment effective from the first day of the absence. Notwithstanding that the first sentence in the clause provides that it is ‘subject to the provisions of the NES’, the balance of the clause may be inconsistent with the NES requirements that:

(a)an employer must not terminate an employee’s employment without written notice of termination (at s.117(1)); and,

(b)an employer must not terminate an employee’s employment without paying any applicable notice in lieu (excluding in circumstances of serious misconduct).[2]

1. I note that in accordance with the NES precedence term in Clause 1.11 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Poultry Processing Award 2020 is taken to be a term of the Agreement.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The Australasian Meat Industry Employees Union (AMIEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the AMIEU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2024. The nominal expiry date of the Agreement is 5 June 2026.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

1. Relevantly, it was identified that clauses 2.1.4, 2.1.5, 6.1.7 and 6.4.3 refer to the ‘award’, where the clauses appear to intend to refer to the Agreement.

1. On 23 September 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the error by changing the references to the ‘award’ in clauses 2.1.4, 2.1.5, 6.1.7 and 6.4.3 to ‘Agreement’.

1. I am satisfied that the errors listed in [17] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR780820]). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 7 November 2024.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58].

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