DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2018/5804)

EVEREST ICE CREAM AUSTRALIA PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 22 FEBRUARY 2019

Application for approval of the Everest Ice Cream Australia Pty Ltd & National Union of Workers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Everest Ice Cream Australia Pty Ltd & National Union of Workers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the National Union of Workers. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clause 13.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, 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 National Union of Workers 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 organisation.

[5] The Agreement was approved on 22 February 2019 and, in accordance with s.54, will operate from 1 March 2019. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the National Union of Workers, sought approval of an enterprise agreement with Everest Ice Cream Australia Pty Ltd. The dispute was brought before the Fair Work Commission. The crux of the matter was whether the proposed agreement complied with the relevant legislative provisions and whether it met the requirements for an enterprise agreement under the Fair Work Act 2009. The Commission was required to determine if the agreement provided for the terms and conditions of employment of the employees in a fair and reasonable manner, and whether it had been genuinely negotiated.

The Commission examined the process through which the agreement was negotiated and whether it was done so in good faith. It also assessed whether the agreement adequately addressed key terms such as wages, hours of work, and other employment conditions. Additionally, the Commission considered submissions from both parties and any relevant precedents that might influence the decision. The Commission found that while the agreement contained provisions that were generally fair and reasonable, it also identified certain areas that did not comply with the legislative requirements. After careful consideration, the Commission determined that the agreement could be approved with modifications to address the non-compliant provisions.

Consequently, the Commission approved the enterprise agreement with certain amendments to ensure compliance with the Fair Work Act 2009. These amendments were aimed at rectifying the non-compliant aspects identified during the review. The final orders included the approval of the agreement with the specified modifications, ensuring it met all necessary legal standards. The decision underscored the importance of ensuring that enterprise agreements are both fair and compliant with statutory requirements.

National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established