BDD Milk Pty Ltd

[2022] FWCA 2628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BDD Milk Pty Ltd

(AG2022/3121)

Bega Salisbury Reliability Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 3 AUGUST 2022

Application for approval of the Bega Salisbury Reliability Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Bega Salisbury Reliability Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BDD Milk Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 1 August 2022 and was determined on the papers.

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.

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

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 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

BDD Milk Pty Ltd, a company engaged in the processing and distribution of dairy products, brought an application to the Fair Work Commission seeking approval of the Bega Salisbury Reliability Enterprise Agreement 2021. The application arose from a collective bargaining process that culminated in an agreement between BDD Milk and a group of employees represented by a union. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. Specifically, the union contested the agreement on the basis that it did not adequately protect employee entitlements and conditions.

The legal issues before the Commission included whether the agreement complied with the "better off overall test" (BOOT), which requires that the proposed conditions must be at least as good as the existing conditions or provide some additional benefit to the employees. Additionally, the Commission had to consider whether the agreement contained all the mandated minimum terms and conditions as outlined in the Fair Work Act. Furthermore, the union argued that certain clauses in the agreement were not fairly negotiated, raising questions about the procedural fairness of the bargaining process.

In determining the application, the Commission examined the evidence provided by both parties regarding the terms of the agreement and the bargaining process. The Commission found that the agreement met the BOOT, as it provided employees with improved conditions in several areas, including pay rates and leave entitlements. The Commission also determined that the agreement contained all the required minimum terms and conditions. With respect to the procedural fairness of the negotiations, the Commission concluded that there was no evidence of coercion or unfairness in the process, thereby upholding the validity of the agreement. As a result, the application for approval was granted.

The Fair Work Commission approved the Bega Salisbury Reliability Enterprise Agreement 2021, finding it to be in compliance with the requirements of the Fair Work Act. The agreement was deemed to meet the better off overall test and included all mandated minimum terms and conditions. The Commission also found that the agreement was the product of a fairly negotiated process. The union's objections were dismissed, and the agreement was approved, effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established