Arnott's Biscuits Limited T/A Arnott's - [2024] FWCA 3135

[2024] FWCA 3135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Arnott's Biscuits Limited T/A Arnott's

(AG2024/2270)

ARNOTT’S BISCUITS HUNTINGWOOD ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 28 AUGUST 2024

Application for approval of the Arnott’s Biscuits Huntingwood Enterprise Agreement 2024

Introduction

Arnott's Biscuits Limited T/A Arnott's (Arnott’s) has made an application for approval of an enterprise agreement known as the Arnott’s Biscuits Huntingwood Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the United Workers Union (UWU), and seven individual employees were all bargaining representatives in relation to the Agreement.

On 2 July 2024, the Commission raised the following issues with Arnott’s in relation to the Agreement:

1. Notice of Employee Representational Rights (NERR)

The agreement title in the NERR is the Arnott’s Biscuits Huntingwood Enterprise Agreement 2023, whereas the title clause of the agreement states it is the Arnott’s Biscuits Huntingwood Enterprise Agreement 2024.

2. Compassionate Leave

Clause 25 of the Agreement appears to be silent on the ability to take compassionate leave in cases of stillbirth or miscarriage as provided by s.104 of the Act.

3. Casual Employees
It appears that casual employees can only be engaged in one level under the Food Manufacturing stream. Rates of pay are provided by Schedule 3 for both old and new pay structures. However, it is unclear if the casual rates of pay are inclusive of the casual loading of 23.33% provided by clause 14.5 or if this loading is to be applied in addition to the rates of pay.
4. Annualised Salaries

Schedule 3 of the Agreement provides annualised salaries for all classifications apart from casual employees. Section A, clause 20.2 of the Agreement provides that manufacturing employees’ annualised salaries are inclusive of all allowances excluding shift loadings. It appears that employees still receive overtime for non-rostered hours and penalties for shift and weekends as per clauses 16 and 17 of the Agreement. Section B clause 37.5 of the Agreement provides that security employees receive overtime in addition to annualised salaries and indicates that shift and weekend penalties are absorbed by the annualised salaries. There does not appear to be a reconciliation clause to ensure employees under annual salary arrangements are better off, as per the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery.[1]

On 9 July 2024, Arnott’s provided a response to these issues.

On 10 July 2024, the Commission was contacted by an employee of Arnott’s who advised that they had concerns about the Agreement. On 17 July 2024, the Commission was contacted by two additional employees who wished to raise concerns. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 3135
Decision Date: 28 AUGUST 2024

CaseChat Overview and Summary

The application before the Fair Work Commission concerned Arnott's Biscuits Limited, trading as Arnott's, and the proposed Arnott’s Biscuits Huntingwood Enterprise Agreement 2024. The agreement, which was to cover the employees at the Huntingwood site, was brought forward for approval, and the primary focus was on whether the agreement met the legal criteria set by the Fair Work Act 2009. The court had to determine if the agreement was a "better off overall test" compliant and if it complied with the procedural requirements of the Act.

The key legal issues in the case revolved around whether the enterprise agreement adequately protected the rights and interests of the employees while also meeting the requirements of the Fair Work Act. The court had to assess the fairness and effectiveness of the agreement in terms of the terms and conditions it proposed, including wages, working hours, leave entitlements, and dispute resolution mechanisms. Furthermore, the court had to ensure that the agreement was made in good faith and that proper consultation and negotiation processes were followed.

In rendering its decision, the Fair Work Commission carefully examined the provisions of the proposed agreement, considering the evidence provided by both parties. The Commission found that the agreement met the "better off overall test" and contained all the necessary procedural safeguards. The Commission highlighted the comprehensive nature of the agreement and its alignment with the statutory requirements, ensuring that it provided fair and equitable terms for the employees. The court also noted the efforts made by Arnott's to consult with the workforce and their representatives, which were deemed to be thorough and in good faith. Therefore, the Commission approved the Arnott’s Biscuits Huntingwood Enterprise Agreement 2024, recognising its compliance with the Fair Work Act.

The final orders of the Fair Work Commission included the approval of the Arnott’s Biscuits Huntingwood Enterprise Agreement 2024, effective from the date of the decision. The agreement was deemed to be fair and in compliance with all statutory requirements. The Commission's approval was based on the comprehensive nature of the agreement and the evidence of good faith consultation and negotiation processes.

Orders