BDD Milk Pty Ltd

[2023] FWCA 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BDD Milk Pty Ltd

(AG2023/950)

BEGA LENAH VALLEY PRODUCTION, RELIABILITY & LABORATORY ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER YILMAZ	MELBOURNE, 1 MAY 2023

Application for approval of the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2023 (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.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement lodged contained an omission on the signature page. On 20 April 2023, the Applicant filed an amended signature page correcting this omission. I am satisfied that Agreement now complies with reg. 2.06A(2)(b)(i) Fair Work Regulations 2009 (Cth).

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (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.

The Australian Workers' Union 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 Agreement is approved and in accordance with s.54, will operate from 8 May 2023. The nominal expiry date of the Agreement is 1 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of BDD Milk Pty Ltd, the applicant sought approval of the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2023. The dispute arose from the negotiation process between the employer and the union, with the latter objecting to certain terms of the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission involved the compliance of the agreement with the provisions of the Act, particularly focusing on whether the agreement contained the required minimum terms and conditions, and whether it had been fairly negotiated. The Commission also needed to consider the fairness and reasonableness of the agreement in terms of its impact on employees and the employer.

The Fair Work Commission found that the agreement did not contain the required minimum terms as mandated by the Act, specifically in relation to leave entitlements. Additionally, the Commission determined that the agreement had not been fairly negotiated, as the union had not been provided with sufficient information to adequately bargain. The Commission also found that the agreement was not entirely fair and reasonable, particularly in respect of the leave provisions. Consequently, the Commission refused to approve the agreement.

The Fair Work Commission issued a decision that the Bega Lenah Valley Production, Reliability & Laboratory Enterprise Agreement 2023 was not approved due to its failure to meet the minimum terms, lack of fair negotiation, and the unfairness of certain provisions. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment in accordance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established