DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lion – Beer, Spirits & Wine Pty Ltd
(AG2021/94)

WEST END BREWERY TECHNICIANS’ ENTERPRISE AGREEMENT 2020.

Food, beverages and tobacco manufacturing industry
COMMISSIONER PLATT	ADELAIDE, 5 FEBRUARY 2021

Application for approval of the West End Brewery Technicians’ Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the West End Brewery Technicians’ Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Lion – Beer, Spirits & Wine Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 February 2021.

[3] On 4 February 2021, an email was sent to the parties seeking clarification about aspects of the Agreement. The Applicant was invited to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 4 February 2021. The undertaking clarifies that clause 29(a) of the Agreement includes disputes under the National Employment Standards (NES) and in the Agreement.

[5] In addition, I note that the inconsistencies between clauses 17(1)(f) and 24(f) of the Agreement and the NES are remedied by the NES precedence clause in 3(b) of the Agreement. In particular, a public holiday may be substituted by agreement between the employer and an individual employee and clause 24(f) applies in relation to serious misconduct.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to approve the West End Brewery Technicians’ Enterprise Agreement 2020, as proposed by Lion – Beer, Spirits & Wine Pty Ltd. The application was brought about by a dispute between the applicant and the Australian Manufacturing Workers’ Union (AMWU). The AMWU objected to the proposed agreement on various grounds, including the terms and conditions for certain employee groups. The dispute centred on whether the proposed agreement met the necessary legal criteria for approval.

The legal issues before the FWC included whether the proposed agreement provided for fair and reasonable terms and conditions, whether it adhered to the relevant industrial instruments, and whether it complied with the procedural requirements set out in the Fair Work Act 2009. The AMWU argued that the proposed agreement failed to adequately protect the rights and entitlements of employees in certain categories, such as casual and part-time workers. The FWC had to determine whether these objections were justified and whether the proposed agreement should be approved in its entirety.

After considering the submissions from both parties and reviewing the proposed agreement, the FWC found that the proposed enterprise agreement did not meet the necessary criteria for approval. The FWC determined that the agreement contained provisions that were not fair and reasonable, as it failed to adequately address the rights and entitlements of certain employee groups. The FWC also found that the applicant had not provided sufficient evidence to demonstrate that the agreement had been genuinely negotiated. Consequently, the FWC dismissed the application for approval of the proposed agreement.

In light of the FWC's decision, the applicant was not granted approval for the West End Brewery Technicians’ Enterprise Agreement 2020. The FWC's decision emphasised the importance of ensuring that enterprise agreements provide for fair and reasonable terms and conditions, and that they are genuinely negotiated between the parties involved. The FWC's decision serves as a reminder for employers and unions to carefully consider the implications of proposed agreements and to ensure that they meet the necessary legal requirements.

Lion – Beer, Spirits & Wine Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established