Inghams Enterprises Pty Ltd Summary

[2022] FWCA 3946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Inghams Enterprises Pty Ltd

(AG2022/4462)

Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022

Poultry processing
COMMISSIONER YILMAZ	MELBOURNE, 10 NOVEMBER 2022

Application for approval of the Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the

Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Inghams Enterprises Pty Ltd. The Agreement is a single enterprise agreement.

The Form F17 and supporting documentation filed by the Applicant indicate that the Notice of Employee Representational Rights (NERR) referred to the Agreement title as the Ingham’s Enterprises (Thomastown Maintenance) Enterprise Agreement 2013. As stated above the correct Agreement title is the Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

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 a term 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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.1.1, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Manufacturing Workers' Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 17 November 2022. The nominal expiry date of the Agreement is 10 November 2025.

COMMISSIONER

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Annexure A

Inghams Enterprises Pty Ltd has applied to the Fair Work Commission for approval of the Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The dispute involved the approval of a new enterprise agreement between Inghams Enterprises Pty Ltd and the employees covered by the Inghams Enterprises (Thomastown Maintenance) Enterprise Agreement 2022. The Fair Work Commission was required to determine whether the agreement met the necessary requirements under the Fair Work Act 2009, including whether it was genuinely agreed to, did not cause financial detriment to any employee, and did not result in substantial changes to the agreement. The Commission also needed to consider whether the agreement covered all employees or a fairly chosen group, and whether it was inconsistent with the National Employment Standards.

The Commission found that the application contained a minor procedural error in the title of the agreement, which was rectified by the applicant. The Commission was satisfied that the employees were not disadvantaged by this error and that the agreement had been genuinely agreed to. The Commission also found that the employer's written undertakings did not cause financial detriment to any employee and did not result in substantial changes to the agreement. The Commission noted that certain provisions of the agreement were likely to be inconsistent with the National Employment Standards, but was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency. The Australian Manufacturing Workers' Union (AMWU) had given notice that it wanted the agreement to cover it, and the Commission noted that the agreement did cover the organisation. The Commission approved the agreement, which will operate from 17 November 2022 and expire on 10 November 2025.

Inghams Enterprises Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established