Fonterra Australia Pty Ltd

[2024] FWCA 4299

[2024] FWCA 4299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fonterra Australia Pty Ltd

(AG2024/3993)

FONTERRA SPREYTON AND WYNYARD ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 4 DECEMBER 2024

Application for approval of the Fonterra Spreyton and Wynyard Enterprise Agreement 2023

1. Fonterra Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fonterra Spreyton and Wynyard Enterprise Agreement 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 11 September 2023 and the Agreement was made on 26 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The employer provided to the employees the pre-June 2023 version of the Notice of Employee Representational Rights (NERR). Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

·   Clause 35: Compassionate Leave

·   Clause 36(4): Public Holidays

1. However, noting clause 4(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement lodged contained referencing errors, omissions, and other errors. The Employer has requested that the Commission exercise its discretion to correct these errors pursuant to s.586 of the Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act. On 7 November 2024, the Employer filed the attached amended version of the Agreement correcting the various errors identified.

1. The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

1. The Agreement was approved on 4 December 2024 and, in accordance with s.54, will operate from 11 December 2024. The nominal expiry date of the Agreement is 1 June 2026.

COMMISSIONER

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Annexure A