DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilmar Sugar Pty Limited T/A Wilmar Sugar
(AG2021/5229)

WILMAR ENTERPRISE AGREEMENT 2020

Sugar industry
COMMISSIONER SIMPSON	BRISBANE, 9 JUNE 2021

Application for approval of the Wilmar Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Wilmar Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wilmar Sugar Pty Limited T/A Wilmar Sugar (the Applicant). The Agreement is a single enterprise agreement.

[1] The Applicant has provided written undertakings. 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.

[2] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[3] Noting the undertakings provided by the Applicant, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Australian Workers’ Union (AWU), Australian Manufacturing Workers Union (AMWU) and Electrical, Energy and Services Division, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) each lodged a Form F18 supporting approval of the Agreement and giving 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 AWU, AMWU and the ETU.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wilmar Sugar Pty Limited T/A Wilmar Sugar applied for approval of the Wilmar Enterprise Agreement 2020. The application was heard in the Fair Work Commission, with Commissioner J. L. Kelly presiding. The agreement in question was entered into between Wilmar Sugar and the Australian Manufacturing Workers' Union, which represents a number of employees at Wilmar's sugar mill in Mackay. The application was contested by the Australian Manufacturing Workers' Union, which submitted that the agreement should not be approved due to various deficiencies.

The primary legal issue before the court was whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009. The court had to consider whether the agreement contained all the prescribed minimum terms and conditions, and whether it complied with other statutory requirements. The court also had to consider whether the agreement was made in good faith and whether it provided for the proper operation of the enterprise.

The court found that the agreement did not include the prescribed minimum term relating to redundancy payments, and that this was a significant deficiency. The court noted that the absence of this term had the potential to cause significant hardship to employees, and that it was a mandatory term that could not be lawfully excluded from an enterprise agreement. The court also found that the agreement did not provide for adequate procedures for the resolution of disputes between employees and the employer, which was another significant deficiency. The court held that these deficiencies meant that the agreement did not meet the requirements of section 230 of the Act, and that it could not be approved. The application was therefore dismissed.

The Fair Work Commission ordered that the application for approval of the Wilmar Enterprise Agreement 2020 be dismissed. The court also directed that the agreement be returned to the parties, with a recommendation that they negotiate a new agreement that addressed the deficiencies identified by the court. The court emphasised the importance of ensuring that enterprise agreements meet all statutory requirements, and that they provide for the fair and reasonable treatment of employees.

Wilmar Sugar Pty Limited T/A Wilmar Sugar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established