Lactalis Australia Pty Ltd T/A Lactalis Australia
[2024] FWCA 2662
•18 JULY 2024
| [2024] FWCA 2662 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Lactalis Australia Pty Ltd T/A Lactalis Australia
(AG2024/2323)
LACTALIS ROWVILLE – AMWU/ETU ENTERPRISE AGREEMENT 2024-2027
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER ALLISON | MELBOURNE, 18 JULY 2024 |
Application for approval of the Lactalis Rowville – AMWU/ETU Enterprise Agreement 2024-2027
An application has been made for approval of an enterprise agreement known as the Lactalis Rowville – AMWU & ETU Enterprise Agreement 2024-2027 (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 Pty Ltd T/A Lactalis Australia (the Employer). The Agreement is a single enterprise agreement.
I am satisfied that each requirement of ss. 186, 187 and 188 as are relevant to this application for approval have been met.
The agreement title in the NERR differs to the title in clause 1.1 of the Agreement. The Employer provided submissions as to this error on 10 July 2024. I am satisfied having regard to those submissions that the difference in the Agreement title and the NERR constitutes a minor technical or procedural error for the purposes of s.188(5)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):
Annual Leave: Clause 15 of the Agreement provides for annual leave in hours whereas s.87(1) of the Act provides annual leave in weeks.
Personal Leave Notice: Clause 17.1 of the Agreement states employees shall, as soon as reasonably practicable prior to the start of their starting time, inform the employer of their inability to attend for duty. This appears inconsistent with s.107(2)(a) of the Act which states that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
Personal Leave and RDOs: Clause 17.1 of the Agreement states that sick leave shall not apply where an employee is sick or injured on a rostered day off. This may be inconsistent with s.97 of the Act.
Carer’s Leave: Clause 20.2.3 appears to limit carer’s leave to an employee who is responsible for the care of the person concerned which appears more restrictive than s.97 of the Act. Furthermore, the clause states that if it is not practicable for the employee to give prior notice of absence, the employee shall notify the employer of such absence at the first opportunity on the day of absence which appears inconsistent with s.107(2)(a) of the Act.
Public Holiday Substitution: Clause 21.4 of the Agreement only provides that substitution of public holidays can be between the union and the employer or a majority of the employees and employer. This appears to be inconsistent with s.115 of the Act.
Deductions on Termination: Clause 32.5 of the Agreement states that if an employee fails to give notice, the employer shall have the right to withhold moneys due to the employee with a maximum amount equal to the ordinary time rate of pay and allowances for the period of notice. This may be inconsistent with NES which requires certain NES entitlements to be paid.
However, noting clause 5.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) I note that the Agreement covers both organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 July 2024. The nominal expiry date of the Agreement is 31 May 2027.
COMMISSIONER
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