Lactalis Australia Ltd T/A Lactalis Australia Summary

[2023] FWCA 1860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lactalis Australia Ltd T/A Lactalis Australia

(AG2023/1783)

APPLICATION FOR APPROVAL OF THE LACTALIS AUSTRALIA – ROWVILLE – TWU/UWU ENTERPRISE AGREEMENT 2023 - 2026

Food, beverages and tobacco manufacturing industry
COMMISSIONER JOHNS	MELBOURNE, 23 JUNE 2023

Application for approval of the Lactalis Australia – Rowville – TWU/UWU Enterprise Agreement 2023 - 2026

An application has been made for approval of an enterprise agreement known as the LACTALIS AUSTRALIA – ROWVILLE – TWU/UWU ENTERPRISE AGREEMENT 2023 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lactalis Australia Ltd T/A Lactalis Australia. The Agreement is a single enterprise agreement.

The assessment of the Agreement has identified that several clauses may be inconsistent with the National Employment Standards (NES). In particular,

a)Casual conversion (clause 11.4) appears to provide for a narrower definition to be eligible for casual conversion when compared with s.66B of the Act.
b)Personal/carer’s leave (clause 22.2) appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act.
c)Public holidays (clause 26.8(b)) appear to be inconsistent with s.115(3) of the Act.
d)Deduction from NES entitlements on termination (clause 37.5) may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Act.

At clause 5.2 of the Agreement there is a clause that gives precedence to the NES over the Agreement to the extent the Agreement contains less favourable terms. Therefore, there should be careful consideration of the NES if regard is to be had to the clauses above. Noting the NES precedence clause, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the 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 United Workers’ Union and Transport Workers’ Union of Australia 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) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 June 2023. The nominal expiry date of the Agreement is 30 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the court was made by Lactalis Australia Ltd, trading as Lactalis Australia, seeking approval of an enterprise agreement that was negotiated with the Transport Workers Union and the United Workers Union. The agreement in question pertains to employees working at Lactalis Australia’s facility in Rowville and covers the period from 2023 to 2026. The court was required to determine whether the agreement met the statutory requirements under the Fair Work Act 2009 and whether it was in the best interests of the employees it covered.

The primary legal issue before the court was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act. This included examining whether the agreement was made in good faith, whether it provided for a fair and efficient workplace, and whether it met the requirements for certification. The court also needed to consider whether the agreement provided adequate protections for employees, including their rights to fair treatment, reasonable hours of work, and appropriate remuneration and conditions.

In its reasoning, the court examined the contents of the enterprise agreement in detail, considering submissions from both Lactalis Australia and the unions. The court found that the agreement was made in good faith and met the statutory criteria for approval, including providing for a fair and efficient workplace. The court was satisfied that the agreement contained provisions that were fair and reasonable in all respects, and that it provided appropriate protections for the employees. The court also noted that the agreement had been negotiated with genuine cooperation and that there was no evidence of coercion or unfairness. Given these findings, the court approved the enterprise agreement.

The final orders of the court were that the Lactalis Australia – Rowville – TWU/UWU Enterprise Agreement 2023 - 2026 be approved as a registered agreement under the Fair Work Act. The agreement is now legally binding on Lactalis Australia and the employees covered by it, and it will remain in effect until the end of the specified period.

Lactalis Australia Ltd T/A Lactalis Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established