Danone Murray Goulburn Pty Ltd

[2023] FWCA 598

[2023] FWCA 598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Danone Murray Goulburn Pty Ltd

(AG2022/5593)

Danone Murray Goulburn Maintenance Enterprise Agreement 2020

Food, beverages and tobacco manufacturing industry
COMMISSIONER JOHNS	MELBOURNE, 24 FEBRUARY 2023

Application for termination of the Danone Murray Goulburn Maintenance Enterprise Agreement 2020

1. On 29 December 2022, Danone Murray Goulburn Pty Ltd (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Danone Murray Goulburn Maintenance Enterprise Agreement 2020 (Agreement).

1. The Agreement is a single enterprise agreement. It was approved by Commissioner O’Neill (as the Deputy President was then) on 27 October 2021.[1]

1. The nominal expiry date of the Agreement was 31 December 2022.

1. Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

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.

1. The application was supported by a Statutory Declaration made on 23 December 2022 by Corrina McKenzie, Senior Human Resources Business Partner for the Applicant. Ms McKenzie declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a)On 17 November 2022, the Company met with the Unions and delegates to discuss, and agree on, the process for an Employee to vote to terminate the Agreement. The Company prepared a presentation on the proposed steps and actions for the process and sought Union and delegate feedback on what was proposed. The parties reached agreement on the proposal and how to proceed during this meeting.

b)On 12 December 2022, Company representatives from Human Resources and Site Management met with the eight employees covered by the Agreement. Employees were taken through a presentation of the proposal and advised that they would vote to terminate the Agreement. Employees were verbally advised of the details of this vote, including time, date, location and method of vote.  Employees were also provided with an information pack, which contained:

·A hard copy of the Danone Murray Goulburn Maintenance Enterprise Agreement 2020.

·A hard copy of the Saputo Dairy Australia & the AMWU & the ETU Reliability Enterprise Agreement 2021 (SDA Agreement) which would apply to the Employees if the DMG Agreement termination occurred.

·An Employee Memo which provided a breakdown of the proposal, including high level comparisons of the differences between the two agreements, focusing on the financial changes:

o16% wage increases under the SDA Agreement.

oMore beneficial redundancy provisions under the SDA Agreement.

oMore beneficial annual leave accrual under the SDA Agreement. 

·The Memo included details on the time, date, location and method of vote. Employees will vote by anonymous ballot by selecting ‘Yes’ or ‘No’.

·The Memo included Frequently Asked Questions about the proposal.

·A Letter of Offer from the Company confirming the intentions of the organization and that subject to the termination of the DMG Agreement, Employees will be offered employment with the Company on the terms and conditions of the SDA Agreement.

1. The termination was agreed to on 12 December 2022. There were 8 employees covered by the agreement and 8 valid votes cast. Of the votes cast, 8 employees voted to terminate the agreement. The Application was made within 14 days of the termination being agreed and was accompanied by the appropriate declaration.

1. On 1 February 2023 the Commission directed that:

a.   by no later than 4:00 pm, 3 February 2023, the Applicant must file a copy of these Directions to its employees and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (or any other relevant organisation).

b.   by no later than 4:00 pm, 7 February 2023,a director or officer of the Applicant must file in the Commission and serve on the AMWU (or any other relevant organisation), a statutory declaration confirming compliance with these Directions.;

c.   by no later than 4:00 pm, 14 February 2023, any employee or any organisation which opposes the termination of the Agreement must file in the Commission (by emailing [email protected]) any submissions, written statements and documents they rely upon in opposition to the Agreement being terminated.

1. On 7 February 2023, Krzysztof Kuczynski, Finance Director Australia and New Zealand for the Applicant made a Statutory Declaration to declare that the Directions issued by the Commission on 1 February 2023 had been adhered to and served upon all employees of the Applicant.

1. No submissions in opposition were filed to date.

1. Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

1. In accordance with s.224 of the Act, the termination will come into effect today, 24 February 2022. An Order to this effect [PR751173] has been issued concurrently with this decision.

COMMISSIONER

[1] [2021] FWCA 6413.

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