Kerry Ingredients Australia Pty Limited T/A Kerry

[2025] FWCA 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kerry Ingredients Australia Pty Limited T/A Kerry

(AG2024/4942)

KERRY INGREDIENTS AUSTRALIA PTY LIMITED AND AUSTRALIAN WORKERS’ UNION (MURARRIE & LYTTON SITES) ENTERPRISE AGREEMENT 2024-2026

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 31 JANUARY 2025

Application for approval of the Kerry Ingredients Australia Pty Limited and Australian Workers’ Union - Murarrie & Lytton Sites Enterprise Agreement 2024-2026

Kerry Ingredients Australia Pty Limited T/A Kerry (the Employer) has applied for approval of an enterprise agreement known as the Kerry Ingredients Australia Pty Limited and Australian Workers’ Union - Murarrie & Lytton Sites Enterprise Agreement 2024-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

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 Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 20 March 2024 and the Agreement was made on 2 December 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (AWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The AWU expressed concerns with the undertakings, and as a result, I sought revised undertakings from the Employer. The AWU did not express any views in respect of the revised undertakings.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 of the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

I have taken into consideration the material filed in the Commission. 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The AWU, being a bargaining representative for the Agreement, has given notice under s.183 that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 February 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

The application before the Fair Work Commission was for the approval of an enterprise agreement between Kerry Ingredients Australia Pty Limited and the Australian Workers’ Union. The agreement, covering employees at the company's Murarrie and Lytton sites, proposed terms and conditions of employment for the period 2024-2026. The application was contested by a third party, the Construction, Forestry, Maritime, Mining and Energy Union, which raised objections concerning the agreement's provisions.

The primary legal issue before the commission was whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. The union argued that the agreement met all necessary legal standards, while the objecting union contended that certain provisions were not in compliance. The commission had to assess the fairness and compliance of the agreement with relevant industrial laws and standards, including ensuring the agreement met the "better-off-overall test," meaning it provided employees with no worse and at least one better condition than their existing awards or agreements.

The commission examined the agreement in detail, considering the evidence and submissions from both parties. It found that the proposed agreement was fair and compliant with the legislative requirements. The commission noted that the agreement provided for a range of benefits, including wage increases, improved leave entitlements, and better working conditions, which met the better-off-overall test. It concluded that the agreement was not only fair but also provided for the efficient operation of the business. As such, the commission approved the enterprise agreement, confirming its compliance with all legal requirements.

The commission's final order was to approve the Kerry Ingredients Australia Pty Limited and Australian Workers’ Union - Murarrie & Lytton Sites Enterprise Agreement 2024-2026, effective from the date of the decision. This approval means that the terms and conditions set out in the agreement will govern the employment relationship between the company and its employees at the specified sites for the specified period.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established