Fonterra Australia Pty Ltd Summary

[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

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).

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.

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.

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.

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.

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.

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.

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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CaseChat Overview and Summary

Fonterra Australia Pty Ltd recently applied to the Fair Work Commission for approval of a new collective agreement with the United Workers Union. The application arose from negotiations between Fonterra and the union to establish terms and conditions of employment for workers at the Fonterra Wynyard Warehouse. The matter was heard by the Commission's Deputy President, who was tasked with determining whether the proposed agreement met the legal standards for approval under the Fair Work Act 2009.

The primary legal issue before the Deputy President was whether the proposed agreement satisfied the requirements for approval under the Fair Work Act. This involved assessing whether the agreement was genuinely negotiated, provided for minimum terms and conditions, and did not have an adverse effect on employees' safety or health. The Deputy President also needed to consider whether the agreement adequately balanced the interests of the employer and the employees, particularly in light of the current economic climate and the impact of the COVID-19 pandemic on the dairy industry.

In reaching a decision, the Deputy President examined the evidence provided by both parties and considered relevant legal precedents. The Deputy President found that the agreement was genuinely negotiated and contained terms and conditions that met the minimum standards set by the Fair Work Act. The Deputy President also determined that the agreement did not adversely affect employees' safety or health and struck an appropriate balance between the interests of the employer and the employees. Given these findings, the Deputy President approved the proposed agreement, which will now serve as the basis for the terms and conditions of employment at the Fonterra Wynyard Warehouse.

The Deputy President's decision concluded that the proposed agreement met all the necessary criteria for approval and was in the best interests of both parties. The Deputy President's approval of the agreement ensures that the workers at the Fonterra Wynyard Warehouse will have a fair and equitable set of terms and conditions under which they will work. The final orders of the Deputy President included the approval of the Fonterra Wynyard Warehouse & United Workers Union Collective Agreement 2023, effective from the date of the decision.

Fonterra Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established