Inghams Enterprises Pty Limited T/A Inghams Enterprises
[2023] FWCA 540
•21 FEBRUARY 2023
| [2023] FWCA 540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Inghams Enterprises Pty Limited T/A Inghams Enterprises
(AG2023/85)
Inghams Enterprises (South Australia Farming) Enterprise Agreement 2022
| Poultry processing | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 21 FEBRUARY 2023 |
Application for approval of the Inghams Enterprises (South Australia Farming) Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Inghams Enterprises (South Australia Farming) Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Inghams Enterprises Pty Limited T/A Inghams Enterprises (Employer). The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) issued by the Employer was not in the form prescribed by the Fair Work Regulations 2009. Rather, the NERR was supplemented with the company letterhead. Having regard to the application and accompanying material, I am satisfied that this constitutes a minor procedural or technical error and employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s 188(2) of the Act.[1]
The Employer 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. The undertakings are taken to be terms of the Agreement.
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.
Clause 4.5 of the Agreement states that if any employee is absent for 3 consecutive working days without notification, it shall be assumed that they have abandoned their employment. Where the employee has not satisfied the Employer of a reasonable excuse within 7 days of the absence, then their employment is terminated. As it is unclear when termination is intended to operate from, clause 4.5 may be inconsistent with the National Employment Standard (NES) at s 117 of the Act.[2] However, given clause 1.6 of the Agreement, I am satisfied the more beneficial entitlement will apply in the event of an inconsistency.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 28 February 2023. The nominal expiry date of the Agreement is 30 June 2025.
DEPUTY PRESIDENT
ANNEXURE A
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318
[2] Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]
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