Inghams Enterprises Pty Ltd Summary

[2014] FWCA 3838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Inghams Enterprises Pty Ltd
(AG2014/1219)

INGHAMS ENTERPRISES (VICTORIA PROCESSING AND DISTRIBUTION) ENTERPRISE AGREEMENT 2013

Poultry processing
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JUNE 2014

Application for approval of the Inghams Enterprises (Victoria Processing and Distribution) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Inghams Enterprises (Victoria Processing and Distribution) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure A.

[4] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved. In accordance with s.54(1) it will operate from 17 June 2014. The nominal expiry date of the Agreement is 30 September 2016.

DEPUTY PRESIDENT

Annexure A.

Model flexibility term

(1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

(a) the agreement deals with 1 or more of the following matters:

(i) arrangements about when work is performed;

(ii) overtime rates;

(iii) penalty rates;

(iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and

(2) The employer must ensure that the terms of the individual flexibility arrangement:

(a) are about permitted matters under section 172 of the Fair Work Act 2009; and

(b) are not unlawful terms under section 194 of the Fair Work Act 2009; and

(3) The employer must ensure that the individual flexibility arrangement:

(a) is in writing; and

(b) includes the name of the employer and employee; and

(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

(d) includes details of:

(i) the terms of the enterprise agreement that will be varied by the arrangement; and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

(e) states the day on which the arrangement commences.

(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

(5) The employer or employee may terminate the individual flexibility arrangement:

(a) by giving no more than 28 days written notice to the other party to the arrangement; or

(b) if the employer and employee agree in writing—at any time.

Printed by authority of the Commonwealth Government Printer

Inghams Enterprises Pty Ltd, a poultry processor and distributor, applied for approval of the Inghams Enterprises (Victoria Processing and Distribution) Enterprise Agreement 2013, which had been negotiated with the Shop, Distributive and Allied Employees Association (SDA). The application was brought under the Fair Work Act 2009 before the Fair Work Commission. The SDA sought to have the agreement approved with the addition of a clause that would provide for the dismissal of employees who were convicted of serious criminal offences. Inghams opposed this addition.

The central issue before the Commission was whether the proposed clause was consistent with the requirements of the Fair Work Act 2009, particularly in terms of procedural fairness and the protection of employees' rights. The Commission had to determine whether the clause was necessary to protect the company's legitimate interests and whether it was consistent with the overall purpose of the Act, which is to provide for a balanced framework for resolving workplace disputes.

In assessing the application, the Fair Work Commission considered the nature of the proposed clause and its implications for procedural fairness. The Commission concluded that the clause did not meet the standard of procedural fairness required by the Act. It found that the clause was overly broad and did not provide adequate safeguards for employees facing dismissal. The Commission held that the clause could potentially lead to unfair dismissals and did not align with the Act's objectives of promoting a fair and productive workplace. Consequently, the Commission did not approve the addition of the clause to the agreement.

The Fair Work Commission approved the Enterprise Agreement 2013 in its original form, without the proposed clause. This decision ensures that the agreement remains in line with the principles of procedural fairness and the protection of employee rights as mandated by the Fair Work Act 2009.

Inghams Enterprises Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established