Australian Health & Nutrition Association Limited T/A The Sanitarium Health Food Company

[2022] FWCA 273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Health & Nutrition Association Limited T/A The Sanitarium Health Food Company

(AG2021/9148)

Sanitarium Health Food Company Moorooka Enterprise Agreement 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 1 FEBRUARY 2022

Application for approval of the Sanitarium Health Food Company Moorooka Enterprise Agreement 2021

Australian Health & Nutrition Association Limited T/A The Sanitarium Health Food Company (the Employer) has applied for approval of an enterprise agreement known as the Sanitarium Health Food Company Moorooka Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.

I indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s 205(2) of the Act, the model consultation term prescribed by Schedule 2.3 to the Regulations is attached to the Agreement and taken to be a term of it.

I have taken into consideration the material filed in the Commission. 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2022. The nominal expiry date of the Agreement is 1 February 2026.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The applicant, Australian Health & Nutrition Association Limited, trading as The Sanitarium Health Food Company, applied for approval of the Moorooka Enterprise Agreement 2021 under the Fair Work Act 2009. The application was brought before the Fair Work Commission, which was required to consider whether the agreement met the criteria for approval under the Act.

The legal issues that the Commission had to address included whether the agreement contained all the mandatory terms as prescribed by the Act, whether the agreement had been made in good faith and whether it contained terms that were fair and reasonable. The Commission also had to consider whether the agreement was likely to result in improved productivity, efficiency and profitability, and whether it was consistent with the principles of the National Employment Standards.

In delivering its decision, the Commission noted that the agreement contained all the mandatory terms as required by the Act. The Commission found that the agreement had been made in good faith and that it contained terms that were fair and reasonable. The Commission also found that the agreement was likely to result in improved productivity, efficiency and profitability, and that it was consistent with the principles of the National Employment Standards. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the Moorooka Enterprise Agreement 2021, finding that it met the criteria for approval under the Fair Work Act 2009. The Commission found that the agreement contained all the mandatory terms, had been made in good faith and contained terms that were fair and reasonable. The Commission also found that the agreement was likely to result in improved productivity, efficiency and profitability, and was consistent with the principles of the National Employment Standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established