DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fonterra (Brands) Australia Pty Ltd T/A Fonterra Brands
(AG2019/3749)

FONTERRA & BAYSWATER PRODUCTION ENTERPRISE AGREEMENT (NATIONAL UNION OF WORKERS) 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 31 OCTOBER 2019

Application for approval of the Fonterra & Bayswater Production Enterprise Agreement (National Union of Workers) 2019.

[1] Fonterra (Brands) Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fonterra & Bayswater Production Enterprise Agreement (National Union of Workers) 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 undertakings are 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 13(a) and 13(b) 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 National Union of Workers, 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.

[8] 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

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Fonterra (Brands) Australia Pty Ltd T/A Fonterra Brands to approve the Fonterra & Bayswater Production Enterprise Agreement (National Union of Workers) 2019. The dispute arose under the Fair Work Act 2009, and involved the negotiation of a new enterprise agreement between Fonterra and the National Union of Workers. The Commission was required to determine whether the agreement met the requirements for approval under the Act, including whether it had been fairly and genuinely negotiated, and whether it contained minimum entitlements for employees.

The central legal issues before the Commission were whether the agreement had been genuinely and fairly negotiated, and whether it met the requirements of section 230 of the Fair Work Act. The Commission examined the negotiation process, the contents of the agreement, and the evidence provided by both parties. The Union argued that the agreement did not meet the requirements for approval, while Fonterra contended that the agreement was the result of genuine and fair negotiations, and contained appropriate minimum entitlements for employees.

In its decision, the Commission found that the agreement had been genuinely and fairly negotiated, and met the requirements for approval under the Fair Work Act. The Commission noted that there was evidence of a good faith negotiation process, and that the agreement contained appropriate minimum entitlements for employees. The Commission also found that the agreement did not contain any provisions that would be detrimental to employees, and therefore met the requirements for approval under section 230 of the Act. The Commission approved the Fonterra & Bayswater Production Enterprise Agreement (National Union of Workers) 2019, and it came into effect on 1 April 2020.

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

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established