Wilmar Sugar Pty Limited

[2024] FWCA 3827

[2024] FWCA 3827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Wilmar Sugar Pty Limited

(AG2024/3766)

WILMAR ENTERPRISE AGREEMENT 2024

Sugar manufacturing industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 1 NOVEMBER 2024

Application for approval of the Wilmar Enterprise Agreement 2024

Introduction

1. Wilmar Sugar Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Wilmar Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Sugar Industry Award 2020 (the Award).

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notice of Employee Representational Rights (NERR) – Agreement Title

1. The agreement title on the NERR is ‘Wilmar Sugar Enterprise Agreement 2023’ while the Agreement title in clause 1.1 is ‘Wilmar Enterprise Agreement 2024’. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Safety Net Weekly Pay Rates

1. The classifications under the safety net pay rates, appeared to fall below and/or are equal to the Award. This raised the concern that employees engaged in these classifications may not be better off overall for the purpose of s.193 of the Act.

1. The Employer provided submissions explaining that the safety net weekly pay rates within Attachment 9 are not the wages paid to employees under the Agreement. Instead, Attachment 9 is used to calculate the additional shift allowance paid to employees when they work an afternoon or night shift under clause 6.3(i) of the Agreement. The Employer further clarified that the wage rates listed in Schedule 1 of the Agreement will apply to employees which are considerably higher than the wage rates under the Award.

National Employment Standards (NES) precedence term in clause 1.6 of the Agreement

1. Clause 4.9(b)(iii) of the Agreement provides that if an employee fails to give notice, Wilmar shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate for the period of notice. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

1. Clause 4.9(d) of the Agreement sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss. 117–123 of the Act.

1. These provisions may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 1.6 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Redundancy

1. Clause 4.10(i)(v) of the Agreement provides that redundancy shall not apply to seasonal and fixed term employees. Clause 42.5 of the Award provides that redundancy applies to fixed term employees in a sugar mill, where an employee is engaged on a series of consecutive contracts where the period of actual service covered by the series of contracts is more than 12 months.

Section 190 Undertakings

1. The employer provided written undertakings to address the issue of redundancy. A copy of the undertakings is attached in Attachment 10. 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.

Sections 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

1. The Australian Workers’ Union (AWU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the AWU, AMWU and CEPU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2024. The nominal expiry date of the Agreement is 1 December 2026.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE526617 PR780850>