DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Rivalea (Australia) Pty Ltd
(AG2019/1126)

ENTERPRISE AGREEMENT RIVALEA (AUSTRALIA) PTY LTD AND THE AUSTRALIAN WORKERS UNION - FARMING OPERATIONS NEW SOUTH WALES 2019

Agricultural industry
DEPUTY PRESIDENT BULL	SYDNEY, 3 JULY 2019

Application for approval of the Enterprise Agreement Rivalea (Australia) Pty Ltd and the Australian Workers Union - Farming Operations New South Wales 2019.

[1] An application (Form F16) has been filed by Rivalea (Australia) Pty Ltd(the applicant) for the approval of an enterprise agreement known as the Enterprise Agreement Rivalea (Australia) Pty Ltd and the Australian Workers Union - Farming Operations New South Wales 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Employer has provided written undertakings regarding:

• Employee rights during the dispute resolution process;

• Notice period for employees transferred to lower paid duties;

• Personal leave accrual and time off in lieu;

• Payment for training conducted outside scope of hours;

• Paid meal breaks for extra hours worked; and

• Pay rates for performance of duties with higher rate than ordinary classification.

[3] A copy of the undertakings is attached at the end of the Agreement. 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.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it and has approved the undertakings. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after approval. The nominal expiry date of the Agreement is 10 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rivalea (Australia) Pty Ltd is the applicant, seeking approval of an Enterprise Agreement with the Australian Workers Union - Farming Operations New South Wales. The nature of the dispute is a challenge by the Union to certain provisions of the agreement, specifically those concerning the calculation of penalty rates and shift allowances. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the challenged provisions of the Enterprise Agreement were consistent with the Fair Work Act 2009. The Union argued that the provisions were not consistent as they failed to adequately protect employee entitlements to penalty rates and shift allowances. The applicant, on the other hand, submitted that the provisions were consistent with the Act and represented a fair and reasonable outcome for both parties.

The Commission found that the challenged provisions were not consistent with the Act. The reasoning given was that the provisions did not provide for adequate protection of employee entitlements to penalty rates and shift allowances, as required by section 235 of the Act. The Commission held that the provisions did not adequately address the calculation of penalty rates and shift allowances for certain shift patterns, and did not provide for sufficient notice of changes to these entitlements. The outcome of the decision was that the provisions were not approved, and the Enterprise Agreement could not be registered until these provisions were amended to comply with the Act.

The final orders of the Commission were that the challenged provisions of the Enterprise Agreement be removed and that the applicant be given a period of time to amend the provisions and resubmit the agreement for approval. The Commission also ordered that the Union and the applicant be given an opportunity to negotiate in good faith to resolve any remaining issues and reach agreement on the terms of the Enterprise Agreement.

Rivalea (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established