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

Annexure A:

The applicant, MSF Sugar Pty Ltd, trading as MSF Sugar, applied to the Fair Work Commission for the approval of the MSF Sugar Pty Ltd - Maryborough Sugar Mill Enterprise Agreement No. 11, 2020. The application was opposed by the Maryborough Sugar Mill Workers Union, representing the employees of MSF Sugar. The dispute centred around the terms and conditions of employment as outlined in the proposed enterprise agreement, including issues such as wages, hours of work, and other workplace conditions.

The primary legal issues before the court were whether the proposed enterprise agreement complied with the Fair Work Act 2009, and whether it met the requirements for being a "better off overall test" (BOOT) agreement. The court needed to determine if the agreement provided a safety net for employees, ensured that employees were not worse off, and provided for proper consultation with employee representatives. Additionally, the court examined whether the agreement was made in good faith and whether the process for reaching the agreement was fair.

In delivering its decision, the court found that the proposed enterprise agreement did meet the statutory requirements. The court was satisfied that the agreement provided a safety net for employees, ensured no employee would be worse off, and contained proper consultation processes. The court also determined that the agreement was made in good faith and that the process for reaching the agreement was fair. Therefore, the court approved the enterprise agreement, finding that it was a BOOT agreement that met the necessary legal standards under the Fair Work Act.

The final orders of the court included the approval of the MSF Sugar Pty Ltd - Maryborough Sugar Mill Enterprise Agreement No. 11, 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the parties were directed to comply with its terms and conditions as outlined in the approved document.

MSF Sugar Pty Ltd T/A MSF Sugar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established