Vinpac International Pty Ltd/Dorrien Estate Winery Pty Ltd T/A Vinpac International Pty Ltd / Dorrien Winemaking

[2021] FWCA 7006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vinpac International Pty Ltd/Dorrien Estate Winery Pty Ltd T/A Vinpac International Pty Ltd / Dorrien Winemaking
(AG2021/8616)

VINPAC INTERNATIONAL MCLAREN VALE ENTERPRISE AGREEMENT 2021

Wine industry
COMMISSIONER PLATT	ADELAIDE, 7 DECEMBER 2021

Application for approval of the Vinpac International McLaren Vale Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Vinpac International McLaren Vale Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Vinpac International Pty Ltd/Dorrien Estate Winery Pty Ltd T/A Vinpac International Pty Ltd / Dorrien Winemaking (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 December 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 7 December 2021. The undertaking deals with the following topics:

• If an employee fails to give the required notice, the company may only make deductions of up to a maximum of one week’s wages.

• Despite clauses 23.2.4-23.2.5 of the Agreement, an employee who takes personal/carer’s leave may be required to provide evidence that would satisfy a reasonable person.

• Notwithstanding clause 14.7(f) of the Agreement, a casual employee will be engaged for a minimum of four hours.

• Notwithstanding clause 17.7(g) of the Agreement, casual loading will apply to all overtime worked on Sundays or Public Holidays for casual employees.

• Notwithstanding clause 20.4 of the Agreement, where an employee requests time off in lieu of overtime (TOIL), which is subsequently approved by the employer, a written agreement is to be put in place confirming that the TOIL is to be taken within a 6 month period and payment is to be made on termination or on request.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[6] 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. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dorrien Estate Winery Pty Ltd, trading as Vinpac International Pty Ltd, applied for approval of the Vinpac International McLaren Vale Enterprise Agreement 2021. The application was brought in the Fair Work Commission (FWC), with the applicant being the employer, Dorrien Estate Winery Pty Ltd, and the respondents being the employees who were covered by the agreement. The dispute centred on whether the proposed agreement met the requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed agreement provided for fair and reasonable terms and conditions of employment, whether it was certified by the Australian Building and Construction Commission (ABCC) as meeting the genuine agreement criteria, and whether the agreement was genuinely negotiated and not made in bad faith. The Commission also considered the extent to which the agreement complied with the requirements of the Fair Work (Registered Organisations) Act 2009, particularly in relation to the representation of the employees by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU).

The Fair Work Commission found that the proposed agreement did meet the necessary requirements for approval. The Commission noted that the agreement had been genuinely negotiated between the parties, with evidence of meaningful consultation and discussion. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment for the employees, taking into account the nature of the business and the bargaining power of the parties. The Commission also found that the agreement had been certified by the ABCC as meeting the genuine agreement criteria, and that the CFMEU was a registered organisation that genuinely represented the employees. As a result, the Commission approved the Vinpac International McLaren Vale Enterprise Agreement 2021.

The final orders of the Fair Work Commission included the approval of the Vinpac International McLaren Vale Enterprise Agreement 2021, effective from 1st July 2021, and the registration of the agreement under the Fair Work Act 2009. The Commission also ordered that the agreement be published on the Fair Work website and that notice of the approval be given to the parties and their representatives. The approval of the agreement means that it will now form the basis of the employment terms and conditions for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established