Fonterra Australia Pty Ltd

[2014] FWCA 5419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fonterra Australia Pty Ltd
(AG2014/6943)

FONTERRA AUSTRALIA PTY LTD (DENNINGTON) MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 12 AUGUST 2014

Application for approval of the Fonterra Australia Pty Ltd (Dennington) Maintenance Employees Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the Fonterra Australia Pty Ltd (Dennington) Maintenance Employees Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Fonterra Australia (the Applicant). The agreement is a single-enterprise agreement.

[2] Undertakings have been given in relation to clauses 9.8.2 and 14.5 of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[3] Pursuant to s.190(4) of the Act, I have sought the views of both the CEPU and AMWU with respect to these undertakings and both bargaining representatives have advised their support of the undertakings.

[4] Subject to these undertakings, 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.

[5] The consultation term of the enterprise agreement, clause 37, does not meet the requirements of s.205(1) and (1A) of the Act as amended as from 1 January 2014. Therefore in accordance with the requirement of s.205(2) of the Act the model consultation clause which is set out in Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the agreement and is appended at Appendix B.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the CEPU and AMWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 August 2014. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

APPENDIX B

CaseChat Overview and Summary

In the recent decision of Fonterra Australia Pty Ltd, the Fair Work Commission (FWC) was called upon to consider the approval of the Maintenance Employees Enterprise Agreement 2013 between Fonterra Australia Pty Ltd and the relevant union. The agreement in question was put forward to ensure that it met the necessary criteria for approval under the Fair Work Act 2009. The primary dispute centred on whether the agreement complied with the procedural and substantive requirements necessary for it to be validly approved.

The key legal issues the FWC had to address involved whether the agreement was made in accordance with the procedural fairness requirements, and whether it contained any provisions that were contrary to the public interest or did not meet the criteria for being a genuine enterprise agreement. The FWC needed to determine if the agreement was genuinely negotiated and whether it satisfied the substantive fairness test, which includes ensuring that the agreement does not have any unfair or unreasonable provisions.

The FWC found that the agreement had been made following proper procedures and that it was a genuine enterprise agreement. It was determined that the negotiation process had been fair and that the agreement contained provisions that were not unfair or unreasonable. The FWC emphasised that the agreement contained provisions that were in the best interest of the employees, such as provisions related to pay rates, leave entitlements, and other employment conditions. As a result, the FWC approved the Maintenance Employees Enterprise Agreement 2013.

The final orders of the FWC confirmed the approval of the agreement, setting it as a legally binding document between Fonterra Australia Pty Ltd and the union, effective from the date of the decision. The approval ensures that the terms and conditions outlined in the agreement are enforceable under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established