McCain Foods (Aust) Pty Ltd

[2020] FWCA 1800

[2020] FWCA 1800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McCain Foods (Aust) Pty Ltd
(AG2020/620)

MCCAIN FOODS (AUST) PTY LIMITED LISAROW PRODUCTION ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 3 APRIL 2020

Application for approval of the McCain Foods (Aust) Pty Limited Lisarow Production Enterprise Agreement 2019.

[1] McCain Foods (Aust) Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the McCain Foods (Aust) Pty Limited Lisarow Production Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s. 190(4) of the Act, I sought the views of the United Workers Union (UWU) being a bargaining representative for the Agreement regarding the undertakings. No views were expressed by the UWU relevant to the undertakings.

[3] 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. Pursuant to s. 190 of the Act, I accept the undertakings. In accordance with s. 201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] The Agreement does not contain a flexibility clause. Pursuant s. 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Concerns were raised by the Commission in relation to clauses 23.1 and 23.2 of the Agreement as prima facie, the clauses appeared to provide for unlawful deductions. In accordance with s. 326(1) of the Act, I note that an unlawful term has no effect.

[6] The UWU 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 the Agreement covers that organisation.

[7] I have taken into consideration the material filed in the Commission. Subject to the matters referred to above in paragraphs [3]-[5], I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as are relevant for this application for approval have been met.

[8] I am also satisfied that it is appropriate to correct a typographical error in clause 2.3 of the Agreement pursuant to s. 586 of the Act which contains the nominal expiry date of the Agreement as 20122, and correct it to 2022.

[9] The Agreement is approved and, in accordance with s. 54 of the Act, will operate from 10 April 2020. The nominal expiry date of the Agreement is 31 August 2022.

COMMISSIONER

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Annexure A.