Pernod Ricard Winemakers Pty Ltd

[2023] FWCA 127

[2023] FWCA 127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pernod Ricard Winemakers Pty Ltd

(AG2022/5402)

2022 PERNOD RICARD WINEMAKERS PTY LTD., CELLAR DOORS (BAROSSA VALLEY) ENTERPRISE AGREEMENT

Wine industry
COMMISSIONER PLATT	ADELAIDE, 13 JANUARY 2023

Application for approval of the 2022 Pernod Ricard Winemakers Pty Ltd., Cellar Doors (Barossa Valley) Enterprise Agreement.

1. An application has been made for approval of an enterprise agreement known as the 2022 Pernod Ricard Winemakers Pty Ltd., Cellar Doors (Barossa Valley) Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Pernod Ricard Winemakers Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 January 2023.

1. On 13 January 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. The issues raised included a pre-approval issue regarding vote notification. It was identified that employees were not notified of the time of the vote at least 7 clear days prior to the commencement of voting. The Applicant submitted that the Commission should consider this a minor technical or procedural error which did not disadvantage the covered employees pursuant to s.188(2) of the Act.

1. The defect was that the employees were not advised the time of the vote until 6 days prior. I note that the Applicant extended the vote by a day. I am satisfied, taking into consideration s.188(2) of the Act, 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 is one National Employment Standards (NES) issues that requires comment:

·   Clause 13.20 of the Agreement covers abandonment of employment. However, the Agreement does not state that employees deemed to have abandoned their employment are entitled to notice of termination. This may be inconsistent with s.117 of the Act.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 13 January 2023. The undertaking deals with the following topics:

·   The NES precedence clause will be relied upon in relation to any inconsistencies that may arise regarding the entitlement to notice of termination for abandonment of employment.

·   A Higher Duties entitlement has been added to the Agreement.

·   Clause 10.2(a) of the Restaurant Industry Award 20020 has been incorporated into the Agreement.

·   A part time employee must be given a minimum of eight full days off work per four-week period.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 30 June 2023.

COMMISSIONER

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