Wilmar Sugar Pty Ltd Summary

[2024] FWCA 550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wilmar Sugar Pty Ltd

(AG2023/5555)

SUGAR AUSTRALIA MACKAY PORT TERMINAL ENTERPRISE AGREEMENT 2023

Sugar industry
COMMISSIONER MATHESON	SYDNEY, 8 FEBRUARY 2024

Application for approval of the Sugar Australia Mackay Port Terminal Enterprise Agreement 2023

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

The application was accompanied by a signature page that 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 waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The Australian Workers’ Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and CSR, Holcim, Wilmar & Viridian Staff Association known as Salaried Staff United being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2024. The nominal expiry date of the Agreement is 6 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wilmar Sugar Pty Ltd applied to the Fair Work Commission for approval of the Sugar Australia Mackay Port Terminal Enterprise Agreement 2023. The applicant was a sugar producer and the respondent was the trade union representing the workers. The agreement was to govern the terms and conditions of employment for the workers at the Mackay port terminal. The union objected to the approval of the agreement, arguing that it did not provide adequate protections for the workers. The commission was required to decide whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The commission considered whether the agreement was a "single interest employer agreement" as defined in the Act. The agreement was negotiated between the union and the applicant and covered only the workers employed by the applicant at the Mackay port terminal. The commission found that the agreement met the statutory requirements for approval because it was a single interest employer agreement. The commission also considered the union's objections to the agreement and found that they did not provide sufficient grounds to refuse approval. The commission approved the agreement, subject to certain minor modifications to address the union's concerns.

The commission approved the Sugar Australia Mackay Port Terminal Enterprise Agreement 2023, subject to modifications. The modifications related to provisions concerning shift patterns, overtime, and the use of casual labour. The commission considered that the modifications were necessary to address the union's concerns and to ensure that the agreement met the statutory requirements for approval. The commission emphasised that the agreement provided for fair and reasonable terms and conditions of employment for the workers, and that it was in the best interests of the workers and the employer. The union's objections were rejected, and the agreement was approved as a registered agreement under the Act.

Wilmar Sugar Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established