Wangaratta Abattoirs Pty Ltd
[2024] FWCA 910
•14 MARCH 2024
| [2024] FWCA 910 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Wangaratta Abattoirs Pty Ltd
(AG2024/241)
WANGARATTA ABATTOIRS PTY. LTD. AND THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION COLLECTIVE AGREEMENT 2023
| Meat Industry | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 14 MARCH 2024 |
Application for approval of the Wangaratta Abattoirs Pty. Ltd. and the Australasian Meat Industry Employees’ Union Collective Agreement 2023.
An application has been made for approval of an enterprise agreement known as the Wangaratta Abattoirs Pty. Ltd. and the Australasian Meat Industry Employees’ Union Collective Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Wangaratta Abattoirs Pty Ltd. The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 15 May 2023 and the Agreement was made on 24 January 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]
Correspondence was sent by my chambers to the employer raising potential concerns regarding, amongst other things, allowances and their potential impact on the better off overall test (BOOT). The concern related to the Agreement not providing for some of the allowances provided for under the Meat Industry Award 2020, and the Meal Allowance being below the Award rate. The employer was invited to make submissions if it considered that no excluded allowance would arise under any reasonably foreseeable pattern of work or type of employment. The employer submitted that the updating of the meal allowance to the Award rate was an oversight and provided an undertaking to rectify that issue. It also stated it considered no excluded allowance would arise under a foreseeable pattern of work into the future, including leading hand and cold temperature allowances. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that patterns of work that would give rise to these allowance that employees would otherwise be entitled to under the Award are not reasonably foreseeable, as that is relevant for the better off overall test. The submissions and undertaking provided also satisfied my concerns regarding the meal allowance issue.
The Employer has also provided written undertakings in response to other BOOT concerns raised. 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.
Separately, the Australasian Meat Industry Employees Union (AMIEU), being a bargaining representative for the Agreement, raised an issue about long service leave for casuals. The issue was referrable to changes to the Long Service Leave Act 2018 (Vic). The Agreement provides that long service leave entitlements would accrue from the date that a full-time or part-time employee commenced (i.e. whether at any time before the Agreement commenced or not). For casuals, the accrual start date was limited to 1 August 2023. The AMIEU sought undertakings for casuals “to rectify a potential deficiency when compared to the LSL Act”, the effect of which was to remove the limitation of 1 August 2023 for casuals under the Agreement. I invited submissions on the issue from the AMIEU as to how this might raise a BOOT issue, as it was unclear to me how such an issue arose. No submissions as such were received, although the AMIEU restated its preferred outcome. So far as the relevant legislation operates (and this was not explained to me), it will operate on its own terms. While the Meat Industry Award 2020, which is the instrument applicable for the BOOT assessment, refers to long service leave, it does so only in connection with the National Employment Standards. I am not satisfied that the issue presents any BOOT issue nor raises any other reason why the Agreement should not be approved.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met.
The AMIEU 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 was approved on 14 March 2024 and, in accordance with s.54 of the Act, will operate from 21 March 2024. The nominal expiry date of the Agreement is 1 August 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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