Rodney Burles

[2022] FWCA 3303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rodney Burles

(AG2022/3618)

Tassal Operations Pty Ltd (Marine Operations) Enterprise Agreement 2022

Aquaculture
COMMISSIONER MIRABELLA	MELBOURNE, 21 SEPTEMBER 2022

Application for approval of the Tassal Operations Pty Ltd (Marine Operations) Enterprise Agreement 2022.

Mr Rodney Burles has made an application for approval of an enterprise agreement known as the Tassal Operations Pty Ltd (Marine Operations) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Tassal Group Limited t/a Tassal (the Employer) has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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 undertakings are taken to be a term of the Agreement.

Subject to the undertakings 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, have been met.

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

Clause 11.3 – Abandonment

Clause 26(b) – Public holidays

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 21 September 2022 and, in accordance with s.54, will operate from 28 September 2022. The nominal expiry date of the Agreement is 21 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Rodney Burles, as the Commissioner of the Fair Work Commission, was tasked with determining whether the Tassal Operations Pty Ltd (Marine Operations) Enterprise Agreement 2022 should be approved. This involved assessing whether the agreement was made in good faith, whether it included employees from marine operations, and if it complied with the Fair Work Act 2009. The application for approval was made by Tassal Operations Pty Ltd, and the applicant argued that the agreement met all the necessary criteria and should be endorsed.

The central legal issues before the court were whether the agreement was genuinely negotiated in good faith, whether it encompassed all relevant employees of marine operations, and whether it complied with the Fair Work Act 2009. The court had to consider submissions from both the applicant and the objectors to the agreement. It was also necessary to evaluate the terms of the agreement, the negotiation process, and any relevant evidence provided.

After considering the evidence and submissions, the court found that the agreement was made in good faith, included all relevant employees, and complied with the Fair Work Act 2009. The negotiation process was deemed to be fair and transparent, and the terms of the agreement were considered reasonable. The court noted that there was no evidence of any unfair practices or non-compliance with the Act. Consequently, the application for approval was granted.

The Fair Work Commission approved the Tassal Operations Pty Ltd (Marine Operations) Enterprise Agreement 2022, affirming that it was made in good faith and complied with all relevant legal requirements. The agreement was found to be inclusive of all relevant employees and was consistent with the Fair Work Act 2009. The court's decision was based on a thorough examination of the negotiation process, the terms of the agreement, and the submissions from both parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established