JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards

[2019] FWC 7331

[2019] FWC 7331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards
(AG2018/6757)

COMMISSIONER MCKINNON MELBOURNE, 23 OCTOBER 2019

Application for approval of the Paradise Orchards Enterprise Agreement 2018 – single enterprise agreement – genuine agreement – application dismissed.

[1] JM Industries Trust & Piagno Discretionary Trust trading as Paradise Orchards has made a single enterprise agreement with its employees known as the Paradise Orchards Enterprise Agreement 2018 (the Agreement). It seeks that the Agreement be approved.

[2] In BTS Enterprise Agreement 2018 & Ors 1, I decided that the Agreement was not capable of approval under the Fair Work Act 2009 in its current form, for the reasons set out in that decision.

[3] Paradise Orchards has given undertakings to address concerns in relation to the Agreement. The undertakings address some, but not all, of the concerns.

[4] The undertakings resolve concerns in relation to the better off overall test and the nominal expiry date as well as the opt out term at clause 4.2.

[5] The undertakings do not resolve concerns about whether the Agreement was genuinely agreed to by employees. I remain of the view that the explanation found necessary in analogous circumstances in Australian Workers’ Union v Gray Australia & Ors 2 (Gray) was not given to employees of Paradise Orchards. In light of Gray, the deficiency cannot be regarded as a minor procedural error warranting the exercise of discretion under section 188(2).

[6] As I am not satisfied that the Agreement has been genuinely agreed to by employees, the Agreement cannot be approved.

[7] The application is dismissed.

COMMISSIONER

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 1   [2019] FWC 6905.

 2   [2019] FWCFB 4253.