Lobethal Abattoirs Pty Ltd T/A Thomas Foods International

[2025] FWCA 510

[2025] FWCA 510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Lobethal Abattoirs Pty Ltd T/A Thomas Foods International

(AG2025/45)

THOMAS FOODS INTERNATIONAL LOBETHAL ABATTOIR PRODUCTION EMPLOYEES ENTERPRISE AGREEMENT 2024

Meat Industry
COMMISSIONER LIM	PERTH, 13 FEBRUARY 2025

Application for approval of the Thomas Foods International Lobethal Abattoir Production Employees Enterprise Agreement 2024

1. Lobethal Abattoirs Pty Ltd trading as Thomas Foods International (the Applicant) has made an application for the approval of an enterprise agreement known as the Thomas Foods International Lobethal Abattoir Production Employees Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. The Applicant provided the Notice of Employee Representational Rights two days before the notification and time and as such, did not notify each affected employee of their representational rights in accordance with s 173(3) of the Act. However, pursuant to s 188(5) of the Act, I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements set out in s 173 of the 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 within the meaning of s 188(2) of the Act.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 31.4 provides that by mutual agreement with the employees the employer may substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee.

(b)Clause 37.3 provides that if the employee fails to provide sufficient notice, the employer is entitled to deduct from the employee’s termination pay the monetary equivalent of the notice which the employee has not provided the employer. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

1. However, I am satisfied that under clause 6.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australasian Meat Industry Employees Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 13 February 2025 and, in accordance with s 54, will operate from 20 February 2025. The nominal expiry date of the Agreement is 13 February 2029.

COMMISSIONER

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ANNEXURE A