Asahi Beverages Pty Ltd

[2024] FWCA 4669

[2024] FWCA 4669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asahi Beverages Pty Ltd

(AG2024/4670)

ASAHI BEVERAGES SELLING EQUIPMENT TECHNICAL SERVICES (VIC) ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER ALLISON	MELBOURNE, 24 DECEMBER 2024

Application for approval of the Asahi Beverages Selling Equipment Technical Services (VIC) Enterprise Agreement 2024

1. Asahi Beverages Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Asahi Beverages Selling Equipment Technical Services (VIC) Enterprise Agreement 2024 (the Agreement).

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 following provision may be inconsistent with the National Employment Standards (NES):

   • Clause 12.3.2, relating to deductions on termination, may permit the employer to withhold monies owing to an employee under the NES.

1. However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Clause 11.1.1 of the Agreement provides for the employment of trainees, but the Agreement is silent as to pay rates for trainees. The Employer submitted that clauses 11.1.2 to 11.1.4 make clear that the Employer will employ apprentices only, and confirmed that it does not currently engage, nor intends to engage, trainees. I am satisfied that for the purpose of s.193A(6) of the Act that trainees are not a type of employment that is reasonably foreseeable and therefore relevant for the better off overall test.

1. Clause 9.1 of the Agreement, regarding settlement of disputes under the Agreement, appeared more restrictive than the requirements of s.186(6) of the Act. The Employer provided an undertaking to resolve this issue.

1. Clause 7.8, relating to flexibility arrangements, allowed a flexibility arrangement to be terminated with 28 days written notice, contrary to the requirement of not more than 28 days set out in s.203(6) of the Act. The Employer provided an undertaking to resolve this issue.

1. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2024. The nominal expiry date of the Agreement is 31 March 2027.

COMMISSIONER

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Appendix A