Suprima Bakeries Pty Ltd

[2024] FWCA 1823

[2024] FWCA 1823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Suprima Bakeries Pty Ltd

(AG2024/1381)

SUPRIMA BAKERIES ENTERPRISE AGREEMENT 2023

Food manufacturing industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 17 MAY 2024

Application for approval of the Suprima Bakeries Enterprise Agreement 2023

Introduction

1. Suprima Bakeries Pty Ltd has made an application for approval of an enterprise agreement known as the Suprima Bakeries Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement covers two employers, Suprima Bakeries Pty Ltd and Suprima Logistics Services Pty Ltd (the Employers). The Agreement is a single enterprise agreement.

1. I am satisfied, based on evidence and submissions provided by the Employers that the Employers are related bodies corporate for the purpose of s 172(5A)(b) of the Act. The Employers are therefore related employers within the meaning of s. 172(5A) of the Act and can make a single enterprise agreement under s. 172(2) of the Act.

Notice of Employee Representational Rights (NERR)

1. The Agreement was referred to as ‘Suprima Bakeries, Minto Site Enterprise Agreement’ in the NERR rather than ‘Suprima Bakeries Enterprise Agreement 2023.’ The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purpose of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Number of Employers Covered

1. The Agreement covers two Employers. However, only one Form F17 was lodged.

1. The Employers subsequently filed separate F17Bs for Suprima Bakeries Pty Ltd and Suprima Logistics Services Pty Ltd respectively. I am satisfied that the requirements of rule 24 (1) of the Fair Work Commission Rules have been met.

Shiftworker Definition

1. The Agreement appears to be silent on the definition of a shift worker for the purpose of annual leave. The Employers provided submissions that the Agreement incorporates the Food, Beverage and Tobacco Manufacturing Award and the Manufacturing and Associated Industries and Occupations Award.

1. Based on these submissions, I am satisfied that the relevant definitions of ‘shiftworker’ from the respective Awards have been incorporated into the Agreement, and that the requirements of s.196 of the Act have been met.

National Employment Standards (NES) precedence term in Clause 4.3 of the Agreement

1. The entitlement to compassionate leave provided by clause 29.1 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household or after the employee or the employee’s spouse or de facto partner has a miscarriage as provided for in ss. 105(1)(b) and (c) of the Act. Further, clause 18.2(a) of the Agreement provides that the employer and the majority of employees may agree to an alternative date being taken as a public holiday instead of any of the prescribed days.

1. These clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 4.3 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The United Workers Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 May 2024. The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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