Asahi Beverages Pty Ltd Summary

[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

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).

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.

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.

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.

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.

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.

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.

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.

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.

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

Asahi Beverages Pty Ltd sought approval of the Asahi Beverages Selling Equipment Technical Services (VIC) Enterprise Agreement 2024. The Fair Work Commission was asked to determine if the proposed agreement was in the best interests of the employees. The application was brought by the employer, Asahi Beverages Pty Ltd, who argued that the agreement was fair and reasonable for its employees, who are members of the Selling Equipment Technical Services Union. The union supported the application, claiming the agreement was beneficial to the employees.

The legal issues before the Commission included whether the proposed agreement was a "better off overall test" (BOOT) agreement, meaning that on balance, the agreement would be more beneficial to the employees than if there were no agreement at all. The Commission also needed to determine whether the agreement complied with relevant industrial relations laws and whether it was made in good faith. Additionally, the Commission had to consider the impact of the agreement on the employees' working conditions, including pay, hours of work, and other entitlements.

The Commission found that the proposed agreement was a BOOT agreement. It noted that the agreement provided for a number of improvements to the employees' conditions, including pay increases and additional leave entitlements. The Commission also found that the agreement was made in good faith and complied with all relevant industrial relations laws. The Commission was satisfied that the agreement would be more beneficial to the employees than if there were no agreement at all and approved the agreement.

The Commission made an order approving the Asahi Beverages Selling Equipment Technical Services (VIC) Enterprise Agreement 2024, effective from the date of the decision. The agreement will now apply to the employees covered by the agreement, and the employer must comply with its terms. The union and the employer are bound by the agreement and must abide by its terms. The decision of the Commission is final and binding on all parties.

Asahi Beverages Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established