Ryan Meat Company (No 2) Pty Ltd A/T/F Ryan Meat Trust T/A Ryan Meat Company Pty Ltd

[2021] FWCA 5863

[2021] FWCA 5863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ryan Meat Company (No 2) Pty Ltd A/T/F Ryan Meat Trust T/A Ryan Meat Company Pty Ltd
(AG2021/6647)

RYAN MEAT COMPANY PTY LTD AND THE AMIEU 2021 MEAT PROCESSING AGREEMENT

Meat Industry
COMMISSIONER O'NEILL	MELBOURNE, 17 SEPTEMBER 2021

Application for approval of the Ryan Meat Company Pty Ltd and the AMIEU 2021 Meat Processing Agreement

[1] Ryan Meat Company Pty Ltd has applied for approval of an enterprise agreement known as the Ryan Meat Company Pty Ltd and the AMIEU 2021 Meat Processing Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I am satisfied that the employees would have genuinely agreed to the Agreement, but for two minor procedural and technical errors within the meaning of s.188(2). Firstly, that the notice of the vote omitted the place of the vote. Secondly, the last Notice of Employee Representation Rights was placed in the lunchroom over a year after the notification time, in circumstances where negotiations were halted for an extended period as a result of COVID-19 restrictions. I am satisfied that the employees were not likely to have been disadvantaged by these errors.

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

[6] The Australasian Meat Industry Employees 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) I note that the Agreement covers the organisation.

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

•  Clause 5.1.3 – Annual Leave;

•  Clause 5.2 – Personal/Carer’s Leave;

•  Clause 5.4.6 – Public Holidays;

•  Clause 7.2.3 – Notice of Termination by the Employee;

•  Clause 7.5 – Payment in Lieu of Notice of Termination;

•  Clause 9.1.1 – Discussions before Termination

•  Clause 9.9 – Employees Exempted; and

•  Clause 12.1.1 – Tools of Trade.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 September 2021. The nominal expiry date of the Agreement is 16 September 2024.

COMMISSIONER

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Annexure A