Vegco Pty Ltd

[2022] FWCA 357

[2022] FWCA 357

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Vegco Pty Ltd

(AG2021/9103)

nsw one harvest enterprise agreement 2021

Food, beverages and tobacco manufacturing industry
Commissioner Matheson	SYDNEY, 4 FEBRUARY 2022

Application for approval of the NSW One Harvest Enterprise Agreement 2021.

1. An application has been made for approval of an enterprise agreement known as the NSW One Harvest Enterprise Agreement 2021 (Agreement). The application was made by Vegco Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. The ‘Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement)’ and ‘Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)’ state the legal name of the Applicant and employer covered by the Agreement as ‘Vegco Pty Ltd’ trading as ‘One Harvest’. The Ppplicant applied for a correction to clauses 3.1.3 and 4.1.2 of the Agreement seeking that the Commission exercise its powers pursuant to s.586 of the Act so that the reference to ‘One Harvest’ is replaced with the correct legal name of the Applicant and employer covered by the Agreement, being ‘Vegco Pty Ltd’. I am satisfied that these amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act. I make the amendments.

1. The Notice of Employee Representational Rights (NERR) stated that the name of the Agreement is the ‘NSW Vegco Pty Ltd Agreement 2020’. The name of the Agreement is ‘NSW One Harvest Enterprise Agreement 2021’. The Applicant submitted that the name ‘One Harvest’ is the brand used by the Applicant, that this name is used on all internal correspondence and is well known to all employees. The Applicant also submitted that employees know that their employer is Vegco Pty Ltd by virtue of their employment agreements and their payslips. An example employment agreement and an example of a payslip were provided to the Commission. The Applicant submitted that, pursuant to s.188(2) of the Act, the difference between the name of the Agreement given in the NERR and the name of the Agreement itself has not impacted genuine agreement and has not resulted in disadvantage to the employees covered by the Agreement.

1. On the basis of the materials before the Commission, and in the circumstances of this application, I find that the Agreement would have been genuinely agreed to within the meaning of s.188(1) of the Act but for this minor technical error and that employees covered by the Agreement were not likely to have been disadvantaged by the error.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Applicant, who is the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The Applicant had originally provided undertakings in a different form, however the undertakings were revised following a hearing on 31 January 2022 in which the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union raised concerns about the form of the undertakings.  The views of each person I know is a bargaining representative were sought in relation to the revised Undertakings and no objections were raised. 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.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

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

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2022. The nominal expiry date of the Agreement is 11 February 2025.

COMMISSIONER

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Annexure A