Turosi Pty Ltd

[2021] FWCA 611

[2021] FWCA 611

FAIR WORK COMMISSION

DECISION

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

Turosi Pty Ltd
(AG2020/3857)

TUROSI PTY LTD QUEENSLAND SUPPLY AND OPERATIONS AGREEMENT 2020

Meat Industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 8 FEBRUARY 2021

Application for approval of the Turosi Pty Ltd Queensland Supply and Operations Agreement 2020.

[1] Turosi Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Turosi Pty Ltd Queensland Supply and Operations Agreement 2020 (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.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

● Clause 5.2.9 – Annual leave;

● Clause 5.1 – Public holidays;

● Clause 5.1.3 – Substitution of public holidays;

● Clause 2.3 – Termination of employment;

● Clause 6.2.2 – Redundancy;

● Clause 6.2.3 – Transfer to lower paid duties;

● Clause 6.2.4 – Notice;

● Clause 6.1.2 – Notice withholding.

[5] However, I note that Clause 1.3.2 of the Agreement provides “where there is any inconsistency between this Agreement and the NES, the more beneficial provisions to an Employee shall take precedence” (the “NES precedence clause”). On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Agreement does not specify a date as its nominal expiry date as required by s. 186(5) of the Act. In response to a concern on my part in relation to this matter, the Applicant advised that the intended nominal expiry date of the Agreement agreed to by the parties is 1 July 2023. A statutory declaration of Mr Jason Waters, employee bargaining representative, evidencing that this date was agreed to by the employees was provided. The employer also provided an undertaking confirming the nominal expiry date of the Agreement.

[8] In the absence of a term in the Agreement specifying its nominal expiry date, I had a concern that the requirements in s. 186(5) of the Act were not met. That section requires that an enterprise agreement specify a date as its nominal expiry date and that the date so specified is not be more than four years after the day on which the Commission approves the agreement. Pursuant to s. 190(1)(b) of the Act the Commission can accept an undertaking that addresses a concern that an enterprise agreement does not meet requirements in s. 186. Accordingly, I accept the undertaking provided by the employer in relation to this matter and I am also satisfied that this will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 15 February 2021. The nominal expiry date of the Agreement is 1 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE510331  PR726734>

Annexure A.