Mushroom Exchange Pty Ltd T/A Costa (Mushroom Category)

[2025] FWCA 2093

[2025] FWCA 2093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mushroom Exchange Pty Ltd T/A Costa (Mushroom Category)

(AG2025/1947)

COSTA – MUSHROOM CATEGORY AND AWU ENTERPRISE AGREEMENT 2025

Agricultural industry
COMMISSIONER REDFORD	MELBOURNE, 30 JUNE 2025

Application for approval of the Costa – Mushroom Category and AWU Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Costa – Mushroom Category and AWU Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Mushroom Exchange Pty Ltd T/A Costa (Mushroom Category) (Costa). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees on appears to have a different name for the Agreement to that which was eventually made, nor was it was not in the prescribed form, as the pre-reform version has been used. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Undertakings

1. In response to several issues raised with Costa in relation to its application, it has provided written undertakings, a copy of which are 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. The undertakings are taken to be a term of the agreement. 

1. The undertakings relate to:  

a.Meal Allowances

b.Minimum Rates – Harvest Operators

Interaction with the National Employment Standards

1. Clause 5.2 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards (NES), and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency (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.

1. Clause 23.3(b) of the Agreement might be interpreted as providing that an employee is not entitled to be absent from work on a public holiday. Section 114(1) of the Act provides that an employee is entitled to be absent from work on a day or part day that is a public holiday. To the extent that clause 23.2(b) of the Agreement is inconsistent with this entitlement, by way of the NES precedence clause, the entitlement in s 114(1) of the Act will prevail.

2. Schedule E Clause 2.2.2 of the Agreement provides employees with one year of service but less than two years of service with three weeks severance pay. Clause 119(2) of the Act provides for four weeks severance pay where an employee has at least one year but less than two years of service. On the basis of the NES precedence clause, the superior entitlement will apply.

Consideration

1. Subject to the 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 Australian Workers' Union - Victorian Branch (AWU) 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 AWU.

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

Variation of the Agreement

1. An application was made by Costa that, if the agreement was approved, it be varied pursuant to s 218A of the Act, to correct what is said to be an obvious error, defect or irregularity.

1. Section 218A of the Act is akin to the slip rule found in s 602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

1. Costa submits that the amendment seeks to address a typographical error. The views of the bargaining representatives were sought and there was no objection. I am satisfied that this is an obvious error. I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s 218A of the Act.

1. The variation is to Schedule D of the Agreement:

a.The references in the table “Harvest Operator” are replaced with “Harvester”

1. The variation will come into effect on the same day as the agreement commences operation.

COMMISSIONER

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ANNEXURE A