Fonterra Australia T/A Fonterra Australia Pty Ltd

[2023] FWCA 1841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fonterra Australia T/A Fonterra Australia Pty Ltd

(AG2023/1386)

FONTERRA – SPREYTON AND WYNYARD SITE (MAINTENANCE) ENTERPRISE AGREEMENT 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER WILSON	MELBOURNE, 22 JUNE 2023

Application for approval of the Fonterra – Spreyton and Wynyard Site (Maintenance) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fonterra – Spreyton and Wynyard Site (Maintenance) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fonterra Australia T/A Fonterra Australia Pty Ltd. The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and The Australian Workers' Union 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) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 June 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Fonterra Australia, trading as Fonterra Australia Pty Ltd, for the approval of a proposed enterprise agreement titled the Fonterra – Spreyton and Wynyard Site (Maintenance) Enterprise Agreement 2022. The primary dispute centred around the terms and conditions of the agreement, which aimed to regulate the employment of maintenance workers at Fonterra's Spreyton and Wynyard sites in Tasmania. The Fair Work Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission primarily revolved around the compliance of the proposed agreement with the various provisions of the Fair Work Act, particularly sections relating to the procedural fairness, good faith, and the overall suitability of the agreement for approval. Key considerations included whether the agreement was genuinely negotiated, whether it contained provisions that were contrary to public policy or contrary to the safety and health of employees, and if it met the "better off overall test." The Commission also needed to ensure that the agreement did not disadvantage any employees in a way that was not justified by a bona fide occupational requirement.

In reaching its decision, the Fair Work Commission examined the evidence provided by both Fonterra and the union representatives involved in the negotiations. The Commission found that the agreement had been genuinely negotiated and contained provisions that were fair and reasonable. It was satisfied that the agreement was in compliance with all statutory requirements and met the better off overall test. Furthermore, the Commission determined that the agreement did not contain any provisions that were contrary to public policy or detrimental to the safety and health of employees. Consequently, the Commission approved the Fonterra – Spreyton and Wynyard Site (Maintenance) Enterprise Agreement 2022.

The final orders of the Commission included the approval of the proposed enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the maintenance workers at the specified sites. The decision underscored the importance of ensuring that enterprise agreements are fairly negotiated and meet the statutory criteria for approval, thereby safeguarding the rights of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established