Fonterra Australia Pty Ltd

[2025] FWCA 3233

[2025] FWCA 3233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fonterra Australia Pty Ltd

(AG2025/2885)

FONTERRA (BAYSWATER) MAINTENANCE ENTERPRISE AGREEMENT (AMWU/ETU) 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER CLARKE	MELBOURNE, 23 SEPTEMBER 2025

Application for approval of the Fonterra (Bayswater) Maintenance Enterprise Agreement (AMWU/ETU) 2025

1. An application has been made for approval of a single enterprise agreement known as the Fonterra (Bayswater) Maintenance Enterprise Agreement (AMWU/ETU) 2025 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act).   The application has been made by Fonterra Australia Pty Ltd (employer). 

1. The Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover the AMWU.  In accordance with s.201(2) I therefore note that the Agreement covers the AMWU.  By way of declaration in form F18, the AMWU has supported the approval of the Agreement and indicated that it is of the view that the Agreement passes the better off overall test.

1. Prior to approving the agreement, it was necessary to make some further enquiries of the employer and the bargaining representatives relating to following matters:

(a)   The Agreement at clause 1.2 named the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) as one of the parties covered by it.   The ETU’s status as a bargaining representative is also confirmed in the F16 application filed by the employer.  However, the ETU had not supplied an F18 declaration in respect of the application.  

(b)   Clause 8.2(b) of the Agreement provides that if an employee of at least 18 years fails to give the required notice of termination, then the employer may withhold “monies due to the employee”.  This provision does not appear to limit the source of monies which may be deducted to wages only, so in essence would authorise deductions from accrued entitlements that are required to be paid out on termination.  The parties were invited to make submissions as to whether the NES precedence term at clause 1.5(b) adequately addresses this issue of whether an undertaking is required.  The parties were invited to consider the terms of clause 45.1(d) of the Manufacturing and Associated Industries and Occupations Award 2020 for comparison in addressing this issue.

(c)   Clause 9.2 of the Agreement appeared to provide for the employer to make a decision to not pay redundancy pay on account of having found “acceptable employment” for the employee.  The NES at section 120 of the Act provides for the employer to be excused from the requirement to pay NES redundancy pay on similar grounds only where the FWC so determines.  The parties were invited to make submissions as to whether the NES precedence term at clause 1.5(b) adequately addresses this issue of whether an undertaking is required.

1. In correspondence with chambers, the following resolutions were reached in respect of these issues:

   (a)    An F18 declaration had been prepared by ETU but there was an oversight in not providing together with the other materials.   By that declaration, the ETU had indicated that it supported the approval of the agreement and sought to be covered by it.   In accordance with s.201(2) I therefore note that the Agreement covers the ETU.

   (b)   The employer was of the view that the NES precedence clause adequately addressed the concerns raised at (b) and (c) above.    The bargaining representatives did not respond to this inquiry within the time I provided for a response.   The employer’s response resolves the concerns I raised in this regard and demonstrates an awareness of the interactions concerned. 

1. Having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met.  The requirement under s. 205A for the Agreement to include a workplace delegates rights term is satisfied by the incorporation by reference of the Manufacturing and Associated Industries and Occupations Award 2020 at clause 1.4 of the Agreement.   

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 September 2025. The nominal expiry date of the Agreement is 31 May 2028. 

COMMISSIONER

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