Patties Foods Meals Pty Ltd

[2024] FWCA 3193

[2024] FWCA 3193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Patties Foods Meals Pty Ltd

(AG2024/2761)

PATTIES FOODS MEALS PTY LTD (PRODUCTION EMPLOYEES, WESTERN AUSTRALIA) ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER CONNOLLY	MELBOURNE, 6 SEPTEMBER 2024

Application for approval of the Patties Foods Meals Pty Ltd (Production Employees, Western Australia) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Patties Foods Meals Pty Ltd (Production Employees, Western Australia) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Patties Foods Meals Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 29 July 2024.

1. The notification time for the Agreement under s.173(2) was 28 March 2024 and the Agreement was made on 8 July 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 6 August 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Applicant in the title of the proposed Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are four National Employment Standards (NES) issues that require comment:

·   Personal/carer’s leave – Clause 22.3 provides that personal leave accrues on a weekly basis. This appears to be inconsistent with s.96(2) of the Act which provides that personal leave accrues progressively.

·   Public holiday – Clause 19.1 provides that that the employer may substitute a public holiday for another day. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee.

·   Notice of termination – Clause 33 of the Agreement indicated that employees would have been deemed to have abandoned their employment if they are absent from work. This clause does not specify that an employee is entitled to payment of notice of termination in accordance with ss. 117–123 of the Act.

·   Deduction from NES entitlements on termination – The following provisions of the Agreement appear to permit impermissible deductions from NES entitlements:

o Clause 16.4 provides that on termination the employer may deduct from the employee's final payment, any amount it is authorised by the employee to deduct. This includes any overpayment of remuneration or the non-return of employer property.

o Clause 30.7 provides that if the employee fails to provide the required notice, the Employer may deduct from any monies owing an amount equivalent to the notice not provided.

o Clause 30.9 provides that on termination the employee must return all employer property prior to receiving any final payments. The entitlement to payments arising under the NES on termination is not subject to such a limitation.

·   It is noted that Clauses 16.4, 30.7 and 30.9 do not appear to limit the source of monies which may be deducted. The effect of this is that these clauses appear to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused leave on termination). This raises the issue that Clauses 16.4, 30.7 and 30.9 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 4.4 of the Agreement acts as an effective NES precedence clause, in that it states that “Where a term of this Agreement is inconsistent with the NES, the NES shall prevail”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 29 August 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Food, Beverage and Tobacco Manufacturing Award 2020 is taken to be a term of the Agreement.

1. The “The Australian Workers’ Union”, 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 6 September 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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