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austlii:cth/FWCA/2025/1183
General information, not legal advice.
FWCA
2025-04-07
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
BARTTER ENTERPRISES PTY LIMITED CARDIFF FEEDMILL AND BERESFIELD FEEDMILL ENTERPRISE AGREEMENT 2025-2029
[1] An application has been made by Bartter Enterprises Pty Ltd (Applicant) for approval of an enterprise agreement known as the Bartter Enterprises Pty Limited Cardiff Feedmill and Beresfield Feedmill Enterprise Agreement 2025-2029 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the agreement if the requirements in ss. 186 and 187 of the Act are met.
[2] A concern was raised that Clause 28.1 of the Agreement purported to limit the circumstances in which redundancy benefits were available in a way that was inconsistent with the Act. In response the Applicant offered an undertaking which, in form, seeks to vary the agreement to delete the part of the clause in issue. An undertaking may be accepted to address a concern raised during the approval process in accordance with s. 190. However, an undertaking cannot effect a deletion in the same way a variation (under s.217) or a correction (under s.218A) may do. As the undertaking is not in the correct form, I do not accept it for the purposes of s. 190.
[3] The Agreement does have an NES precedence clause at clause 5.2. The clause provides that where there is an inconsistency between the Agreement and the NES, the NES will apply. This provision will have work to do in the circumstances of redundancy such that the NES will apply.
[4] Having regard to the information contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.
[5] The United Workers Union (UWU) were a bargaining representative for the Agreement. They support the application for approval. The union 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 the Agreement covers the UWU.
[6] The Agreement is approved on 7 April 2025. The operative date of the Agreement will be seven days from the date of this decision in accordance with s.54 of the Act. The nominal expiry date is 11 March 2029.
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