MSF Sugar Pty Ltd T/A MSF Sugar

[2020] FWCA 5621

[2020] FWCA 5621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSF Sugar Pty Ltd T/A MSF Sugar
(AG2020/2326)

MSF SUGAR PTY LTD - MARYBOROUGH SUGAR MILL ENTERPRISE AGREEMENT NO. 11, 2020

Sugar industry
DEPUTY PRESIDENT LAKE	BRISBANE, 23 OCTOBER 2020

Application for approval of the MSF Sugar Pty Ltd - Maryborough Sugar Mill Enterprise Agreement No. 11, 2020.

[1] An application has been made for approval of an enterprise agreement known as the MSF Sugar Pty Ltd - Maryborough Sugar Mill Enterprise Agreement No. 11, 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MSF Sugar Pty Ltd T/A MSF Sugar. The agreement is a single enterprise agreement.

[2]  I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 4.7.3 – Deduction on termination
● Clause 4.7.5(b) – Abandonment of employment
● Clause 7.1.1. – Annual leave
● Clause 7.1.7 – Annual leave – pro rata accrued leave
● Clause 7.3.2 – Paid carer’s leave - entitlement
● Clause 7.3.5(c) – Personal/carer’s leave
● Clause 7.9.4 – Jury Service

[3] The operation of s. 55 of the Act and clause 3 of the employer’s undertaking are such that I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Employer has provided written undertakings. 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. Copies of the undertakings are attached to the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[6] Pursuant to 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.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisations.

[8] The Agreement was approved on 23 October 2020 and, in accordance with s.54, will operate from 30 October 2020. The nominal expiry date of the Agreement is 30 April 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE509307  PR723744>

Annexure A: