Danone Murray Goulburn Pty Ltd
[2023] FWCA 1668
•19 JUNE 2023
| [2023] FWCA 1668 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Danone Murray Goulburn Pty Ltd
(AG2023/1325)
DANONE MURRAY GOULBURN PTY LTD AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2021
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 19 JUNE 2023 |
Application for termination of the Danone Murray Goulburn Pty Ltd and United Workers Union Enterprise Agreement 2021
Danone Murray Goulburn Pty Ltd (DMG) has lodged an application (the Application) for termination of the Danone Murray Goulburn Pty Ltd and United Workers Union Enterprise Agreement 2021 (the DMG UWU Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act).
The application was made following a vote of employees covered by the DMG UWU Agreement on 4 May 2023, in which a majority of employees agreed to terminate the DMG UWU Agreement.
An application for termination of an agreement made pursuant to s.222 must be approved where the conditions set out in s.223 are satisfied. Section 223 provides as follows:
“223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
The Application was made within the timeframe required.
The Application was accompanied by a statutory declaration of Ms Corrina McKenzie, Senior Human Resources Business Partner of DMG, and a range of explanatory materials that were provided to employees covered by the DMG Agreement.
The materials accompanying the Application provide that DMG is in a joint venture with Saputo Dairy Australia (SDA) (the Joint Venture). The employees engaged by DMG in the manufacturing of yogurt and dairy products at the Kiewa site are currently employed under the DMG UWU Agreement. The DMG UWU Agreement has a nominal expiry date of 30 June 2023. The employees engaged by SDA in the manufacture of cream cheese at the Kiewa site are currently employed under the Saputo Dairy Australia Pty Ltd (Victorian Sites) National Union of Workers Enterprise Agreement 2018 (SDA Agreement), which has a nominal expiry date of 30 June 2020. The Applicant submitted that the nominal expiry date of the SDA Agreement was extended until 30 June 2023 via a memorandum of understanding.
If the Application is approved, the Joint Venture intends to have employees currently engaged by DMG under the DMG UWU Agreement in the production of yoghurt terminated and re-employed by SDA under the SDA Agreement. This is conditional on the Application being successful and is to occur within two weeks of the termination of the DMG UWU Agreement.
On 6 June 2023, correspondence was sent from my Chambers to the United Workers’ Union (UWU) seeking their views on the Application.
On 7 June 2023, the UWU confirmed that they support the Application.
DMG, the UWU, and its delegates met and agreed to a process for employees to vote on the proposed termination of the DMG UWU Agreement. Meetings with employees were held from 3 to 6 April 2023. An email was sent to all the relevant employees covered by the DMG UWU Agreement providing them with a copy of both the DMG UWU and SDA Agreements. Further materials provided to the relevant employees included a comparison of the two agreements, a memo of Frequently Asked Questions, and details of the time, date, location and method of the vote. A wage rates comparison attached to Ms McKenzie’s statutory declaration was also given to the relevant employees and provides that the roster arrangements would result in employees being better off overall under the terms and conditions of the SDA Agreement. The information provided to employees on 11 April 2023 explaining the effects of the termination of the Agreement was also attached to Ms McKenzie’s statutory declaration.
In her statutory declaration, Ms McKenzie further provides that on 28 April 2023, in response to additional inquiries, the relevant employees were provided with an additional Frequently Asked Questions document. Further, from 11 April to 1 May 2023 the DMG Site Management and Human Resources team continued to meet with the relevant employees to discuss the proposed termination of the DMG UWU Agreement.
Ms McKenzie’s statutory declaration provides that there are 62 employees covered by the DMG UWU Agreement. All 62 employees covered by the Agreement cast a valid vote. Of those 62 employees 48 voted to approve the termination of the DMG UWU Agreement. The majority of employees who cast a vote voted in favour of the termination. There are no grounds for believing that the relevant employees have not agreed to the termination of the DMG UWU Agreement. I am satisfied that the termination was agreed in accordance with s.221(1) of the Act.
I have formed the view that the information provided to employees contained sufficient detail about the effect the termination of the agreement would have on their employment conditions such that they were able to make an informed decision as to whether they agreed to the termination. On the basis of the materials filed, including the statutory declaration of Ms McKenzie, I satisfied that DMG has complied with the requirements of s.220(2) of the Act.
I sought the views of the UWU and note it confirmed support of the Application. I also note the parties have undertaken to commence negotiating a new SDA and UWU Agreement. Should the Application for termination of the DMG UWU Agreement be approved, the transferring employees will be eligible to participate in the bargaining process for the new SDA UWU Agreement. In the circumstances I am satisfied that the Agreement should be terminated. An order to this effect will be issued separately to this decision.
In accordance with s.224 of the Act the termination will operate from 19 June 2023.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<AE514372 PR762899>
0
0
0