Fonterra Australia Pty Ltd

[2022] FWCA 4041

[2022] FWCA 4041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fonterra Australia Pty Ltd

(AG2022/4442)

Fonterra and Transport Workers Union (Farm Milk Collection -Victoria) Agreement 2022

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 18 NOVEMBER 2022

Application for approval of the Fonterra and Transport Workers Union (Farm Milk Collection -Victoria) Agreement 2022.

1. Fonterra Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fonterra and Transport Workers Union (Farm Milk Collection -Victoria) Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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

1. Subject to the undertaking 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 did not take all reasonable steps to ensure that during the access period for the Agreement the relevant employees were given a copy of the Agreement and it did not take all reasonable steps to ensure that the employees had access to a copy of the Agreement throughout the access period for the Agreement. The Employer also did not take all reasonable steps to inform the relevant employees by the start of the access period for the Agreement the time, place and method of the vote. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements in sections 180(2) and (3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.1.2 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 Transport Workers’ Union of Australia, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 18 November 2022 and, in accordance with s.54, will operate from 25 November 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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Annexure A