Rinoldi Pasta Pty Ltd

[2024] FWCA 2144

[2024] FWCA 2144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rinoldi Pasta Pty Ltd

(AG2024/1708)

RINOLDI PASTA PTY LTD & UNITED WORKERS UNION AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 12 JUNE 2024

Application for approval of the Rinoldi Pasta Pty Ltd & United Workers Union Agreement 2023.

1. Rinoldi Pasta Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Rinoldi Pasta Pty Ltd & United Workers Union Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

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 FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 15 March 2024 and the Agreement was made on 6 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. 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. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

1. The notice of employee representational rights provided to employees was not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

·   Clause 17.3: Redundancy

·   Clause 18.1.3: Abandonment of employment

·   Clause 18.2.2: Notice of termination

·   Clause 31.1: Annual leave (accrual)

·   Clause 34: Compassionate leave

·   Clause 37.1.2: Public holidays

1. However, noting clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 12 June 2024 and, in accordance with s.54, will operate from 19 June 2024. The nominal expiry date of the Agreement is 30 April 2026.

COMMISSIONER

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Annexure A