Wilmar Sugar Pty Ltd T/A Sugar Australia

[2020] FWCA 4112

[2020] FWCA 4112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilmar Sugar Pty Ltd T/A Sugar Australia
(AG2020/1907)

SUGAR AUSTRALIA - YARRAVILLE - ENTERPRISE AGREEMENT 2020

Sugar industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 5 AUGUST 2020

Application for approval of the Sugar Australia - Yarraville - Enterprise Agreement 2020.

[1] Wilmar Sugar Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Sugar Australia - Yarraville - Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The coverage of the notice of employee representational rights (the NERR) issued to employees on 13 and 14 August 2019 referred to “employees that are located at the Yarraville Refinery located at Whitehall Street, Yarraville in the State of Victoria and who are employed in positions covered by the skill and competency classification structures described in the Agreement,” however, a copy of the Agreement containing the classification structures was not provided to employees until 2 and 3 June 2020. The Employer provided submissions on 28 July 2020 that the coverage of the NERR ought have read “employees that are located at the Yarraville Refinery located at Whitehall Street, Yarraville in the State of Victoria and who are employed in positions covered by the skill and competency classification structures described in the 2017 Agreement” (emphasis added). The Employer further provided submissions as to s 188(2) of the Act. In light of those submissions, I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1(Huntsman)that this constitutes a minor technical or procedural error for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[5] Subject to the undertaking referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer, 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.

[6] I observe that clauses 20.3, 28.10, 28.11 and 32.2(a) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.2(b) and (c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 5 August 2020 and, in accordance with s 54, will operate from 12 August 2020. The nominal expiry date of the Agreement is 26 February 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318

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