Inghams Enterprises Pty Ltd
[2025] FWCA 740
•28 FEBRUARY 2025
| [2025] FWCA 740 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 185—Enterprise agreement
Inghams Enterprises Pty Ltd
(AG2025/216)
INGHAMS ENTERPRISES (WA BREEDER FARMS) ENTERPRISE AGREEMENT 2025
| Poultry processing | |
| COMMISSIONER LIM | PERTH, 28 FEBRUARY 2025 |
Application for approval of the Inghams Enterprises (WA Breeder Farms) Enterprise Agreement 2025.
Inghams Enterprises Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Inghams Enterprises (WA Breeder Farms) Enterprise Agreement 2025 (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.
The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.
The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is “Inghams Enterprises Breeder Farms (WA) Enterprise Agreement 2025” whilst the Agreement title is “Inghams Enterprises (WA Breeder Farms) Enterprise Agreement 2025”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.
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.
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.
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.
I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
(a)Clause 5.2(4) provides for the cashing out of annual leave but does not seem to require each instance of cashing annual leave to be a separate agreement made in writing in accordance with s 93(2)(b) of the Act.
(b)Clause 5.4(2) provides for compassionate leave; however, it appears to be silent regarding compassionate leave for stillbirths or miscarriages in accordance with ss 104(1)(b) and (c) of the Act.
(c)Clause 5.7(3) states that the Company may substitute another day for any prescribed in this clause. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
(d)Clauses 7.1(1)(e), 7.2(6) and 7.4 of the Agreement appear to provide examples of conduct which allow for the instant dismissal of an employee. These may be more restrictive than the serious misconduct provisions provided in s 12 of the Act and Regulation 1.07 of the Regulations.
(e)Clause 7.1(2) provides that if the employee does not provide the required notice of termination, the employer may withhold monies equal due to the employee on termination equal to the ordinary time rate of pay for the period of notice. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
(f)Clause 5.1(1) states that any period of unpaid leave other than community service leave will not count as continuous service in accordance with s 22 of the Act, but will not break service. This may be inconsistent with s 22(4) of the Act and Division 5 of Part 2-2 of Chapter 2 of the Act.
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.
The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 25A of the Pastoral Award 2020 is taken to be a term of the Agreement.
The Agreement was approved on 28 February 2025 and, in accordance with s 54, will operate from 7 March 2025. The nominal expiry date of the Agreement is 31 December 2027.
COMMISSIONER
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ANNEXURE A
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