Van Hessen Australia Pty Ltd

[2024] FWCA 2999

[2024] FWCA 2999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Van Hessen Australia Pty Ltd

(AG2024/2831)

VAN HESSEN AUSTRALIA PTY LTD AND THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION VICTORIAN MEAT PROCESSING AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER ALLISON	MELBOURNE, 16 AUGUST 2024

Application for approval of the Van Hessen Australia Pty Ltd and the Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2024

1. Van Hessen Australia Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Van Hessen Australia Pty Ltd and the Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2024 (the Agreement).

1. 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.

Notice of Representational Rights and Workplace Delegates’ Rights term

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Van Hessen Australia Pty Ltd and the Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 2021” which does not match the title of the Agreement to be approved. The NERR was also not in the form prescribed by the regulations. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors.

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Under s.205A(2), the workplace delegates’ rights term in Clause 31A of the Meat Industry Award 2020 (the Award) is taken to be a term of the Agreement.

Interaction with the National Employment Standards and other provisions in the Act

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 2.2.1(c), relating to abandonment of employment, does not specify that an employee is entitled to payment of notice of termination in accordance with ss.117 – 123 of the Act.

• Clause 2.2.2(c), relating to deductions on termination, may permit the employer to withhold monies owing to an employee under the NES.

• Clause 4.2.1(b) relating to notice requirements for personal and carer’s leave, may be a more stringent notice requirement than as provided in s.107(2)(a) of the Act. This clause also states that a failure to notify the duration of an absence may result in stand down on return, which is not contained in the Act.

• Clauses 4.2.1(d) and 4.6.2 may provide a more burdensome standard of proof than required by s.107(3) of the Act.

• Clause 4.6 relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with ss.104 and 105 of the Act.

• Clause 4.4.1, relating to public holidays, does not contain entitlements for gazetted public holidays.

• Clause 4.4.2 appears to allow the employer to withhold pay entitlements of an employee on public holidays in certain circumstances which are not provided for in the NES.

1. However, noting clause 12 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.

1. Clause 2.2.3(b) of the Agreement, relating to deductions, purports to permit the Employer to deduct payment from employees in circumstances that would ordinarily require the Employer to stand down employees, pursuant to s.522 of the Act. This provision may contravene s.522 of the Act and therefore be unenforceable. 

BOOT Undertakings relating to Shift Penalties

1. Clause 2.1.4 of the Agreement, relating to shift penalties, purports to apply Clause 23 of the Award into the Agreement, but does not incorporate Clause 23. The Employer provided an undertaking expressly incorporating Clause 23 of the Award to address this issue.

1. Clause 2.1.4(b), referring to shift penalties, is ambiguous as to whether casual employees can receive shift penalties. The Employer provided an undertaking to resolve this issue.

1. 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.

Conclusion

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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2024, notwithstanding the date specified in clause 1.4(a) of the Agreement. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

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Annexure A