Pershouse Produce Pty Ltd

[2024] FWCA 512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pershouse Produce Pty Ltd

(AG2024/48)

PERSHOUSE PRODUCE PTY LTD ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT DOBSON	BRISBANE, 5 FEBRUARY 2024

Application for approval of the Pershouse Produce Pty Ltd Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Perhouse Produce Pty Ltd Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Perhouse Produce Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 4.6.1 – Maximum Weekly Hours.
·   Clause 5.1.5 – Deduction/Withholding of monies due to the employee under the NES on termination.
·   Clause 5.2.8 – Redundancy – Exemption where Transmission of Business occurs.

However, noting clause 1.4.2 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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 6 December 2027.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

Pershouse Produce Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement with their employees. The application was opposed by the National Tertiary Education Union, representing some of the employees. The dispute centered around various terms and conditions within the proposed agreement, including pay rates, leave entitlements, and procedural matters.

The legal issues the court needed to address involved determining whether the agreement met the statutory requirements under the Fair Work Act 2009, including if it provided for the minimum entitlements specified by the Act and if it was fairly negotiated. Additionally, the court had to assess if the agreement contained any provisions that were contrary to public policy or if it had been approved in a manner compliant with the Act.

In rendering its decision, the Fair Work Commission examined the evidence and submissions from both parties. The Commission concluded that the proposed agreement was compliant with the Fair Work Act and did not contravene any public policy considerations. It found that the agreement provided for all minimum entitlements and that the negotiation process was fair. Consequently, the Commission approved the Pershouse Produce Pty Ltd Enterprise Agreement 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established