Lactalis Australia Pty Ltd T/A Lactalis Australia

[2021] FWCA 2415

[2021] FWCA 2415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Lactalis Australia Pty Ltd T/A Lactalis Australia
(AG2021/4536)

LACTALIS AUSTRALIA PTY LTD (NAMBOUR OPERATIONS) ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 APRIL 2021

Application for approval of the Lactalis Australia Pty Ltd (Nambour Operations) Enterprise Agreement 2021.

[1] The Lactalis Australia Pty Ltd T/A Lactalis Australia (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Lactalis Australia Pty Ltd (Nambour Operations) Enterprise Agreement 2021 (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.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

● Clause 4.6.6 – Termination of Employment;

● Clause 7.1.7 – Statutory Holidays; and

● Clause 7.2 – Annual Leave.

[5] However, I note clause 1.4 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) and the Australian Workers’ Union (the AWU) being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 7 May 2021. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511264  PR729114>

Annexure A