International Flavours & Fragrances (Australia) Pty Ltd

[2024] FWCA 3494

[2024] FWCA 3494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

International Flavours & Fragrances (Australia) Pty Ltd

(AG2024/3188)

INTERNATIONAL FLAVOURS & FRAGRANCES (AUSTRALIA) PTY LTD AND UNITED UNION OF WORKERS – COLLECTIVE AGREEMENT 2024- 2027

Food, beverages and tobacco manufacturing industry
COMMISSIONER CONNOLLY	MELBOURNE, 3 OCTOBER 2024

Application for approval of the International Flavours & Fragrances (Australia) Pty Ltd and United Union of Workers – Collective Agreement 2024- 2027

1. An application has been made for approval of an enterprise agreement known as the International Flavours & Fragrances (Australia) Pty Ltd and United Union of Workers – Collective Agreement 2024- 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by International Flavours & Fragrances (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 5 September 2024.

1. The notification time for the Agreement under s.173(2) was 6 June 2023 and the Agreement was made on 8 August 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 16 September 2024, the Employer was invited to address aspects of the Agreement.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the incorrect year in the title of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are three National Employment Standards (NES) issues that require comment:

·   Personal leave: Clause 29.4 of the Agreement provides that if an employee makes a claim for personal leave, they must produce or forward within 48 hours of the commencement of their absence evidence that supports their taking of the leave. The time requirement appears to go beyond the scope of s.107 of the Act.

·   Compassionate leave: Clause 30 provides for compassionate leave, however, it is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

·   Public holiday: Clause 37.6 of the Agreement provides that the majority of employees and the employer may agree to substitute a public holiday for another day. This appears to be inconsistent with s.115(3) of the Act.

1. Clause 3 of the Agreement acts as an effective NES precedence clause, in that it states that “To avoid doubt, nothing in this Agreement is intended to provide for term(s) less favourable than the National Employment Standards or displace the National Employment Standards in a manner less beneficial to any employee. Accordingly, the National Employment Standards will continue to apply to the extent that any term of this Agreement is detrimental in any respect when compared with the National Employment Standards”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Food, Beverage and Tobacco Manufacturing Award 2020 is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 January 2027.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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