Australasian Food Holdings Pty Ltd T/A Fonterra

[2024] FWCA 3574

[2024] FWCA 3574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australasian Food Holdings Pty Ltd T/A Fonterra

(AG2024/3231)

FONTERRA CAMPBELLFIELD AND TULLAMARINE ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER CONNOLLY	MELBOURNE, 11 OCTOBER 2024

Application for approval of the Fonterra Campbellfield and Tullamarine Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Fonterra Campbellfield and Tullamarine Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australasian Food Holdings Pty Ltd T/A Fonterra (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 11 September 2024.

1. The notification time for the Agreement under s.173(2) was 15 March 2024 and the Agreement was made on 9 August 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 1 October 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Notice of Termination: Clause 3.6(b) states if the employee fails to give notice the Employer shall have the right not to pay the employee for any period of the notice which ought to have been provided. However, this may reduce an employee’s NES entitlement payable on termination.

1. Clause 1.5(b) of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 4 October 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

Annexure A

[1] 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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

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