ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.54, 206, 739 Fair Work Act 2009 – dispute about proper application of clause concerning minimum hourly rates in B-d Farm Paris Creek P/L Employee Collective Workplace Agreement 2009 (Agreement) – clause stated minimum hourly rates specified would be adjusted by three per cent annually – whether under terms of Agreement the adjustment continued beyond nominal expiry date – Agreement expired three years ago – parties sought assistance of Commission under Agreement – doubt about capacity of Commission to make binding determination – parties requested Commission issue public assessment – applicant claimed annual adjustment only applied to nominal life of Agreement – claimed was inverse to object in s.171(a) for an enterprise agreement to continue to apply increases following nominal expiry where Act provides mechanism in s.206 to uphold safety net [Catalina Country Club] as ‘could confer an unreasonable windfall’ – respondent claimed three per cent annual adjustment should continue as long as Agreement remains in place – Commission considered Full Bench approach to construction of enterprise agreement [AMWU v Berri] – consideration involves ordinary and natural meaning of terms of clause read in context – no express or implied limit on application of clause – Agreement remains in operation under terms of s.54 of FW Act – all terms of Agreement remained enforceable and binding – Commission distinguished case from Catalina where wage adjustments were limited to nominal life – in Catalina issue about whether wage adjustments continued to apply was collateral to potential impact of agreement termination – Commission accepted bargaining for agreement generally involves wage outcomes for nominal life – each agreement must be considered on own terms to discern objective intention – given terms of agreement reasonable that full terms of agreement continue to apply until ceases to operate – wage adjustment not limited to nominal life – accepted s.206 applies and base rates in Agreement cannot be less than award – does not discern objective intention in Act or Agreement that s.206 means clause should not apply as agreed – clause continued to operate and apply – recommended applicant reconsider and calculate proper rates under Agreement – underpayment of entitlements should be rectified – parties commence to negotiate new agreement. B-d Farm Paris Creek P/L v Johnson
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