Turosi Pty Ltd

[2022] FWCA 1630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Turosi Pty Ltd

(AG2022/1186)

Turosi Thomastown and United Workers Union Enterprise Agreement 2022

Poultry processing
COMMISSIONER YILMAZ	MELBOURNE, 17 MAY 2022

Application for approval of the Turosi Thomastown and United Workers Union Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Turosi Thomastown and United Workers Union Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Turosi Pty Ltd. The Agreement is a single enterprise agreement.

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, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 6.1(a), 6.2.1 and 6.9.6 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.9(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union 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.

The Agreement is approved and in accordance with s.54, will operate from 24 May 2022. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Turosi Pty Ltd, sought approval of the Turosi Thomastown and United Workers Union Enterprise Agreement 2022. The respondent, United Workers Union, opposed the application. The matter was heard in the Fair Work Commission. The dispute centred around whether the enterprise agreement met the necessary legal requirements for approval under the Fair Work Act 2009. Specifically, the respondent argued that the agreement did not comply with several provisions of the Act, including those relating to minimum entitlements, redundancy payments, and procedural fairness.

The Commission first considered whether the agreement provided for fair and reasonable minimum entitlements. It examined whether the terms met the minimum standards set out in the National Employment Standards and the relevant award. The Commission also assessed whether the agreement provided adequate redundancy provisions and whether it contained provisions for procedural fairness. The respondent argued that the agreement did not meet these requirements, while the applicant maintained that it did. The Commission conducted a thorough review of the terms of the agreement and the relevant legal provisions to determine whether the agreement was fair and reasonable.

After careful consideration, the Commission found that the agreement did not adequately provide for minimum entitlements, redundancy payments, and procedural fairness as required by the Fair Work Act. Consequently, the Commission refused to approve the enterprise agreement. The respondent's arguments were largely upheld, and the applicant's application was dismissed. The Commission's decision was based on the detailed analysis of the agreement's provisions and their compliance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established