Fonterra Australia Pty Ltd

[2024] FWCA 3428

[2024] FWCA 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fonterra Australia Pty Ltd

(AG2024/3515)

FONTERRA WYNYARD WAREHOUSE & UNITED WORKERS UNION COLLECTIVE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER ALLISON	MELBOURNE, 2 OCTOBER 2024

Application for approval of the Fonterra Wynyard Warehouse & United Workers Union Collective Agreement 2023

1. Fonterra Australia Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Fonterra Wynyard Warehouse & United Workers Union Collective Agreement 2023 (the Agreement).

1. The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the United Workers’ Union.

1. The application was required to be filed within 14 days after it was made on 16 August 2024 in accordance with s.185(3) of the Act. As it was not filed until 5 September 2024, it was filed six days after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Fonterra Wynyard Warehouse & United Workers Union Enterprise Agreement 2023” which does not match the title of the Agreement to be approved. The NERR was also not in the current form prescribed by the regulations. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors.

1. The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 14.2(b), relating to notice of termination by an employee, may permit the Employer to withhold monies owing to an employee under the NES.

• Clause 32.1, relating to annual leave, expresses the entitlement to annual leave in hours, rather than weeks pursuant to s.87 of the Act.

• Clause 34.2(b), relating to notice requirements for personal and carer’s leave, may be a more stringent notice requirement than as provided in s.107(2)(a) of the Act.

• Clause 35, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with ss.104 and 105 of the Act.

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

1. I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2024. The nominal expiry date of the Agreement is 1 June 2026.

COMMISSIONER

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