Fonterra Brands (Australia) Pty Ltd T/A Fonterra Brands

[2019] FWCA 7469

[2019] FWCA 7469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fonterra Brands (Australia) Pty Ltd T/A Fonterra Brands
(AG2019/3746)

FONTERRA (BAYSWATER) MAINTENANCE ENTERPRISE AGREEMENT (AMWU/ETU) 2019

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 31 OCTOBER 2019

Application for approval of the Fonterra (Bayswater) Maintenance Enterprise Agreement (AMWU/ETU) 2019.

[1] Fonterra (Brands) Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fonterra (Bayswater) Maintenance Enterprise Agreement (AMWU/ETU) 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

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

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, and the additional information provided by the Employer, 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.

[4] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that clauses 14(a)(i) and 14(b)(i) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 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.

[7] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions on 18 October 2019 as to the explanation for the late lodgment. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[8] “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[9] The Agreement was approved on 31 October 2019 and, in accordance with s 54, will operate from 7 November 2019. The nominal expiry date of the Agreement is 31 May 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A