Manildra Flour Mills (Manufacturing) Pty Limited T/A Manildra Flour Mills

[2022] FWCA 2391

[2022] FWCA 2391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Manildra Flour Mills (Manufacturing) Pty Limited T/A Manildra Flour Mills

(AG2022/2246)

Manildra Flour Mills Enterprise Agreement 2022 - 2025 Incorporating the site of Manildra, Narrandera, Gunnedah Auburn, Clyde

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 JULY 2022

Application for approval of the Manildra Flour Mills Enterprise Agreement 2022 - 2025 Incorporating the site of Manildra, Narrandera, Gunnedah Auburn, Clyde.

1. Manildra Flour Mills (Manufacturing) Pty Limited T/A Manildra Flour Mills (the Employer) has made an application for approval of an enterprise agreement known as the Manildra Flour Mills Enterprise Agreement 2022 - 2025 Incorporating the site of Manildra, Narrandera, Gunnedah Auburn, Clyde (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking 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, have been met.

1. The Employer did not take all reasonable steps to notify the relevant employees of the time, place and method of the vote by the start of the access period for the Agreement. Further, 12 employees who are not covered by the Agreement were included in the vote. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors made in relation to the requirements in sections 180(3) and 181(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

·   Clause 30.3 – Termination

·   Clause 37.7(a) – Personal leave

·   Clause 37.7(c) – Personal leave

1. However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 18 July 2022 and, in accordance with s.54, will operate from 25 July 2022. The nominal expiry date of the Agreement is 31 July 2025.

COMMISSIONER

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Annexure A