Kerry Ingredients Australia Pty Ltd T/A Kerry Ingredients, United Workers’ Union Summary

[2021] FWCA 6053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kerry Ingredients Australia Pty Ltd T/A Kerry Ingredients, United Workers’ Union
(AG2021/6911)

KERRY INGREDIENTS AUSTRALIA PTY LIMITED AND UNITED WORKERS UNION (MURARRIE & LYTTON SITE) - QLD ENTERPRISE AGREEMENT 2021 - 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 1 OCTOBER 2021

Application for approval of the Kerry Ingredients Australia Pty Limited & United Workers Union (Murarrie and Lytton Site) - Qld Enterprise Agreement 2021 – 2024.

[1] Kerry Ingredients Australia Pty Ltd T/A Kerry Ingredients, United Workers’ Union (the Employer) has applied for approval of an enterprise agreement known as the Kerry Ingredients Australia Pty Limited & United Workers Union (Murarrie and Lytton Site) - Qld Enterprise Agreement 2021 – 2024 (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] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the United Workers’ Union (UWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received by my Chambers.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model consultation term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.

[6] I indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s 205(2) of the Act, the model consultation term prescribed by Schedule 2.3 to the Regulations is attached to the Agreement and taken to be a term of it.

[7] The UWU 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) of the Act I note that the Agreement covers the UWU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The parties in this case are Kerry Ingredients Australia Pty Ltd trading as Kerry Ingredients and the United Workers’ Union. The nature of the dispute is an application for the approval of an enterprise agreement, specifically the Kerry Ingredients Australia Pty Limited & United Workers Union (Murarrie and Lytton Site) - Qld Enterprise Agreement 2021 – 2024. This application was heard in the Fair Work Commission of Australia.

The legal issues before the court involved the scrutiny of whether the proposed enterprise agreement complied with the Fair Work Act 2009, particularly in terms of whether it was made in good faith and whether it contained provisions that met the requirements for a low paid or unprotected workforce. Key points of contention included the terms regarding wages, conditions of employment, and any potential impacts on employees' rights and protections.

The Fair Work Commission, in its decision, examined the agreement in detail and concluded that it was made in good faith and met the statutory requirements. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that it did not disadvantage the employees. The court also noted the extensive consultation process undertaken by the employer and the union, which reassured the Commission of the good faith nature of the agreement. Consequently, the application for approval was granted.

The final orders of the Commission were that the Kerry Ingredients Australia Pty Limited & United Workers Union (Murarrie and Lytton Site) - Qld Enterprise Agreement 2021 – 2024 be approved as a registered agreement, effective from the date of the decision. This approval allows the terms of the agreement to be legally binding on the parties and their employees.

Kerry Ingredients Australia Pty Ltd T/A Kerry Ingredients, United Workers’ Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established