BDD Milk Pty Ltd

[2025] FWCA 3380

[2025] FWCA 3380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

BDD Milk Pty Ltd

(AG2025/3362)

BEGA LENAH VALLEY PRODUCTION, RELIABILITY & LABORATORY ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER REDFORD	MELBOURNE, 10 OCTOBER 2025

Application for approval of the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BDD Milk Pty Ltd. The Agreement is a single enterprise agreement.

Interaction with the National Employment Standards

1. Clause 5 of the Agreement provides that it is to be read an interpreted in conjunction with the National Employment Standards (NES) and where there is any inconsistency between the Agreement and the NES, the more beneficial provision will apply (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 19.9 – annual leave – this clause requires annual leave to be taken within one year of being accrued – this requirement is not consistent with the NES and to the extent it results in a detriment for an employee, will not apply due to the NES precedence clause.

b.Clause 20.1 - Personal/carer’s leave – this clause provides that personal / carer’s leave accrues based on 76 hours per year for employees working a 38 hour week; 72 hours per year for employees working a 36 hour week, and 1 / 26^th of ordinary hours for part time employees. Section 96 of the Act does not provide for personal / carer’s leave to accrue in this manner and, to the extent it results in a detriment for an employee, will not apply due to the NES precedence clause.

c.Clause 20.6- Personal/carer’s leave – this clause requires employees to provide notice of absence on personal leave no later than one hour after their scheduled shift start time. Clause 20.8 of the Agreement states that if an employee fails to give notice in accordance with clause 20.6 they will not be entitled to paid personal/carer’s leave. Section 107(2)(a) of the Act requires employees to provide notice as soon as practicable, which may be a time after the leave has started. Thus, an employee covered by the Agreement who fails to give notice in accordance with clause 20.6 of the Agreement would, due to the operation of the NES precedence clause, likely still be entitled to paid personal/carer’s leave.

d.Clause 20.9 - Personal/carer’s leave - this clause states that all personal/carer’s leave absences, multiple and single, require a medical certificate, and if a medical certificate is not reasonably practicable then a statutory declaration will be accepted. Section 107(3) requires that evidence be provided in relation to personal/carer’s leave which would “satisfy a reasonable person”, and thus may not always require a medical certificate or statutory declaration.  To the extent it results in a detriment for an employee, will not apply due to the NES precedence clause.

e.Clause 27.7 - withholding monies at termination - this clause provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation.  In so far as this clause permits a deduction of  monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination) it is unlikely to have any effect to the extent of any inconsistency.  

Consideration

1. On the basis of the materials filed in support of the application 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.

2. The Australian Workers’ Union (AWU) 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 AWU.

3. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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