Wilmar Sugar Pty Ltd

[2023] FWCA 3081

[2023] FWCA 3081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Wilmar Sugar Pty Ltd

(AG2023/3216)

SUGAR AUSTRALIA - RACECOURSE REFINERY ENTERPRISE AGREEMENT 2023

Sugar industry
COMMISSIONER CONNOLLY	MELBOURNE, 22 SEPTEMBER 2023

Application for approval of the Sugar Australia - Racecourse Refinery Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Sugar Australia - Racecourse Refinery Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Wilmar Sugar Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 September 2023.

1. The notification time for the Agreement under s.173(2) was 15 November 2022 and the Agreement was made on 28 August 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 19 September 2023, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Abandonment of Employment – Clause 2.3(c) 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 (see Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 at [58]).

·   Personal Leave (Accrual) – Clause 8.1(c) states that an employee is entitled to accrue 84 hours of personal/carer’s leave, inconsistent with s.96(1) of the Act which specifies personal/carer’s leave in days.

1. Clause 11.7 of the Agreement acts as an effective NES precedence clause, in that it states that “Where a term of this Agreement is inconsistent with a provision of the NES, the NES provision prevails to the extent of the inconsistency unless the Agreement term provides a more beneficial entitlement for the employee, in which case the Agreement term prevails”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Australian 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 this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. 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 June 2025.

COMMISSIONER

[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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