Luv-A-Duck Pty Ltd

[2025] FWCA 360

[2025] FWCA 360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Luv-A-Duck Pty Ltd

(AG2025/113)

LUV-A-DUCK PTY LTD (PRODUCTION) ENTERPRISE AGREEMENT 2024-2027

Poultry processing
COMMISSIONER REDFORD	MELBOURNE, 30 JANUARY 2025

Application for approval of the Luv-a-Duck Pty Ltd (Production) Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Luv-a-Duck Pty Ltd (Production) Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Luv-A-Duck Pty Ltd (Luv-A-Duck). The Agreement is a single enterprise agreement.

Undertakings

1. In response to several issues raised with Luv-A-Duck in relation to its application, it provided further submissions and a written undertaking, a copy of which 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. I have sought the views of the United Workers Union (UWU) who were a bargaining representative for the Agreement and who raise no objection to the undertaking. The undertaking, which relates to them matter noted below, is taken to be a term of the agreement. The undertaking relates to:  

a.Employment and rate of pay for Apprentices

Interaction with the National Employment Standards

1. Clause 5 of the Agreement provides that ere there is any inconsistency between the Agreement and the National Employment Standards (NES), the more beneficial provision shall take precedence (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Special maternity leave: Clause 30.3(f)(i) of the Agreement provides that employees are entitled to unpaid special parental leave if the pregnancy terminates after 28 weeks other than by birth of a living child. Section 80 of the Act provides that female employees are entitled to unpaid special maternity leave if their pregnancy ends after a period of gestation of at least 12 weeks otherwise than by the birth of a living child. To the extent this gives rise to any inconsistency, I note that the NES precedence clause means the NES standard will prevail.

b.Personal / carers’ leave: Clause 28.1(b) of the Agreement provides that an employee shall take all reasonable steps to advise the employer of their absence from duty, as near as possible to, but no later than normal commencement time. Provided that, if it is not practicable to inform the employer by normal commencement time, the employee is apparently obliged to inform the employer as soon as practicable thereafter. This may result in a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started). To the extent this gives rise to any inconsistency, I note that the NES precedence clause means the NES standard will prevail

c.Compassionate leave: Clause 28.2 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

d.Public holidays: Clause 31.1(f) of the Agreement appears to provide that that the employer and a majority of affected employees may agree to 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 employee, rather than a majority of employees however, when read in conjunction with the NES precedence clause (clause 5) will have no effect to the extent of any inconsistency.

e.Deductions on termination of employment - Clause 21.1(c) of the Agreement provides that where an employee wilfully damages or fails to return PPE clothing or equipment, the employer may make deductions from entitlements. This clause may therefore purport to permit the employer to deduct monies from employee’s entitlements arising under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 5) will have no effect to the extent of any such inconsistency.

Workplace delegates rights

1. I note that clauses 34 and 39 of the Agreement provides for some entitlements with respect to workplace delegates. Clause 39.4(b) of the Agreement provides that if an Award that would cover a workplace delegate confers an additional or more favourable entitlement, such a term is incorporated into the Agreement as an additional term. I therefore note that it appears clause 26A of the Poultry Processing Award 2020 may have application to employees covered by this Agreement as a term of this Agreement, in addition to the terms of clauses 34 and 39, and furthermore, that the terms of the workplace delegates rights clause in this Agreement is not less favourable than the term in the relevant modern Award.

Consideration

1. Subject to the submissions and 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.

1. 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) I note that the Agreement covers the UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE527818  PR783799>

ANNEXURE A