Koko Black Premium Pty Ltd

[2024] FWCA 3879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Koko Black Premium Pty Ltd

(AG2024/3349)

KOKO BLACK CREATIVE CENTRE ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 6 NOVEMBER 2024

Application for approval of the Koko Black Creative Centre Enterprise Agreement 2024

Koko Black Premium Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Koko Black Creative Centre Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 23 April 2024 and the Agreement was made on 21 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

The notice of employee representational rights provided to employees was drafted using an outdated template and was, therefore, not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 30.13: Annual leave – termination of employment

· Clause 32: Public holidays

· Clause 44: Termination – withholding of monies

However, noting clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

The Agreement was approved on 6 November 2024 and, accordance with s.54, will operate from 13 November 2024. The nominal expiry date of the Agreement is four years after the day on which the Fair Work Commission approves the agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Koko Black Premium Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement, the Koko Black Creative Centre Enterprise Agreement 2024. The agreement was to be applied to employees working in the creative industry sector, and the company sought to implement various terms and conditions of employment. The application was contested by the Australian Services Union, which raised concerns about several provisions in the proposed agreement.

The legal issues before the Commission included whether the proposed agreement met the statutory requirements for approval, including compliance with the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement provided for a safety net of minimum entitlements, whether it was free from prohibited content, and whether it had been made in good faith and without coercion. The Commission also needed to determine if the agreement provided appropriate mechanisms for the resolution of disputes and if it included provisions for the protection of vulnerable employees.

In its decision, the Commission found that the proposed agreement did not fully comply with the statutory requirements for approval. The Commission noted several deficiencies, including inadequate provisions for the protection of vulnerable employees and a lack of appropriate mechanisms for the resolution of disputes. The Commission also found that certain provisions in the agreement were not in good faith and had been made without proper consultation with the relevant unions. Consequently, the Commission refused to approve the Koko Black Creative Centre Enterprise Agreement 2024. The company has the right to appeal the Commission's decision within 21 days of the decision being made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established