Lemnos Foods Pty Ltd

[2021] FWCA 199

[2021] FWCA 199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lemnos Foods Pty Ltd
(AG2020/3728)

LEMNOS FOODS PTY LTD AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 19 JANUARY 2021

Application for approval of the Lemnos Foods Pty Ltd and United Workers Union Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Lemnos Foods Pty Ltd and United Workers Union Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lemnos Foods Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The relevant employees were given access to the written text of the Agreement from 12 November 2020, and the Food, Beverage and Tobacco Manufacturing Award 2010 (which is incorporated by reference in the Agreement) from 16 November 2020. The vote took place on 19 November 2020. Therefore, the relevant employees did not have access to the materials during the whole of the 7-day period ending immediately before the start of the voting process as required under s.180(2) of the Act.

[4] Furthermore, the relevant employees were notified of the vote on 12 November 2020 and the vote took place on 19 November 2020. Therefore, the employer did not notify the relevant employees of the voting details by the start of the 7-day period ending immediately before the start of the voting process as required under s.180(3) of the Act.

[5] Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the employer’s declaration and submissions (including a letter provided at lodgment), 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 within the meaning of s.188(2) of the Act.

[6] 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.

[7] The United Workers’ Union 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) I note that the Agreement covers the organisation.

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

•  Clause 17.4 – Termination other than redundancy;

•  Clause 37.3 – Personal/carer’s leave; and

•  Clause 40.3 – Public holidays.

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE510112  PR726198>

Annexure A