Asahi Beverages Pty Ltd

[2024] FWCA 1344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Asahi Beverages Pty Ltd

(AG2024/1083)

ASAHI BEVERAGES TULLAMARINE PRODUCTION AND DISTRIBUTION EMPLOYEES ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 APRIL 2024

Application for approval of the Asahi Beverages Tullamarine Production and Distribution Employees Enterprise Agreement 2023.

Asahi Beverages Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Asahi Beverages Tullamarine Production and Distribution Employees Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 10 July 2023 and the Agreement was made on 21 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

The Construction, Forestry and Maritime Employees Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 18 April 2024 and, in accordance with s.54, will operate from 25 April 2024. The nominal expiry date of the Agreement is 16 October 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Asahi Beverages Pty Ltd applied to the Fair Work Commission for approval of the Asahi Beverages Tullamarine Production and Distribution Employees Enterprise Agreement 2023. The applicants were the employer, Asahi Beverages Pty Ltd, and the trade union, the Liquor, Hospitality and Miscellaneous Workers' Union. The dispute centred on whether the terms of the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, including the provisions concerning the preservation of lawful access to workplaces. The Fair Work Commission heard the application, considering submissions from both parties and the implications of the proposed terms on workplace operations and employee rights.

The key legal issues the Commission needed to address were whether the enterprise agreement provided for lawful access to workplaces, as required by section 235 of the Fair Work Act, and whether the agreement met the other statutory requirements for approval. The Commission examined the specific provisions of the agreement and the context in which they would operate, focusing on the balance between maintaining lawful access and the parties' bargaining outcomes. The Commission also had to consider whether the agreement was made in good faith and whether it adhered to the other criteria outlined in the Act for the approval of enterprise agreements.

In its decision, the Commission found that the enterprise agreement did provide for lawful access to workplaces, as it included provisions that allowed authorised persons to enter the premises for specified purposes. The Commission was satisfied that the agreement was made in good faith and met the other statutory requirements for approval. Consequently, the Commission approved the Asahi Beverages Tullamarine Production and Distribution Employees Enterprise Agreement 2023, acknowledging the parties' ability to negotiate terms that were fair and reasonable, while also ensuring compliance with the legislative framework.

The Fair Work Commission ordered the approval of the Asahi Beverages Tullamarine Production and Distribution Employees Enterprise Agreement 2023, effective from the date of the decision. This decision allows the terms of the agreement to be binding on the employees covered by the agreement, subject to the provisions of the Fair Work Act and any relevant industrial instruments. The approval reflects the Commission's consideration of the balance between the parties' bargaining positions and the statutory requirements for the operation of enterprise agreements in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established