Wilmar Sugar Pty Ltd T/A Sugar Australia

[2024] FWCA 2225

[2024] FWCA 2225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wilmar Sugar Pty Ltd T/A Sugar Australia

(AG2024/1868)

SUGAR AUSTRALIA - YARRAVILLE - ENTERPRISE AGREEMENT 2024

Sugar industry
COMMISSIONER ALLISON	MELBOURNE, 17 JUNE 2024

Application for approval of the Sugar Australia - Yarraville - Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Sugar Australia - Yarraville - Enterprise Agreement 2024 (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 Ltd T/A Sugar Australia. The Agreement is a single enterprise agreement.

1. On 5 June 2024, my Chambers wrote to the parties noting that clauses 20.3, 28.11, 28.11, 29, and 32.2(a) of the Agreement, relating to public holiday substitutions, compassionate leave entitlements, notification requirements for carer’s leave, and parental leave entitlements, may provide less beneficial entitlements to employees than when compared with the National Employment Standards (NES). I sought an undertaking from the Employer to resolve these issues.

1. The Employer provided a written undertaking confirming that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency. I am satisfied that this undertaking addresses the concerns outlined in paragraph 2 above. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. My Chambers further noted with the parties that the Agreement is silent on pay rates for apprentices. I sought submissions on whether the Employer ordinarily engages apprentices and trainees and if so, how they can be considered better off overall under the Agreement. If apprentices are not intended to be engaged under the Agreement, I sought the parties’ views on whether it was reasonably foreseeable for them to be employed under the Agreement.

1. The Employer submitted that it does not ordinarily engage apprentices at the Yarraville site. It contended that the classifications in the Agreement are not trades for which there are apprentice arrangements and submitted that it is not reasonably foreseeable that it will employ apprentices during the life of the Agreement. I accept the Employer’s submission and I am satisfied that for the purpose of s.193A(6) of the Act that apprentices are not a type of employment that is reasonably foreseeable and therefore relevant for the better off overall test.

1. Subject to the undertaking 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.

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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2024. The nominal expiry date of the Agreement is 26 February 2027.

COMMISSIONER

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Annexure A