Inghams Enterprises Pty Limited

[2024] FWCA 1498

[2024] FWCA 1498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Inghams Enterprises Pty Limited

(AG2024/1201)

INGHAMS ENTERPRISES PTY LIMITED WA DISTRIBUTION ENTERPRISE AGREEMENT 2023

Poultry processing
COMMISSIONER LIM	PERTH, 24 APRIL 2024

Application for approval of the Inghams Enterprises Pty Limited WA Distribution Enterprise Agreement 2023

1. Inghams Enterprises Pty Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Inghams Enterprises Pty Limited WA Distribution Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

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 14 November 2023 and the Agreement was made on 28 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant has 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

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

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 4.5(1) provides that another day may be taken as a holiday by arrangement between the Employer and employee/s in lieu of any of the days named in this subclause. This appears inconsistent with s 115(3) of the Act which provides that an employer and individual employee may agree on the substitution of a day or part-day of a public holiday.

(b)Clause 4.5(1) contains an exhaustive list of public holidays that employees are entitled to but does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, as provided by s 115(b) of the Act.

1. However, I am satisfied that under clause 1.6 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Shop, Distributive and Allied Employees Association (SDAEA) (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 24 April 2024 and, in accordance with s 54, will operate from 1 May 2024. The nominal expiry date of the Agreement is 31 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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ANNEXURE A