DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lactalis Australia Pty Ltd T/A Lactalis Australia Pty Ltd
(AG2019/4874)

LACTALIS AUSTRALIA PTY LTD - BRISBANE OPERATIONS ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 18 FEBRUARY 2020

Application for approval of the Lactalis Australia Pty Ltd - Brisbane Operations Enterprise Agreement 2019.

[1] Lactalis Australia Pty Ltd T/A Lactalis Australia Pty Ltd has applied for approval of an enterprise agreement known as the Lactalis Australia Pty Ltd - Brisbane Operations Enterprise Agreement 2019 (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] 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); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[3] 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.

[4] 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.

[5] The AWU, CEPU and AMWU 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 AWU, CEPU and AMWU.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2020. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A.

CaseChat Overview and Summary

The matter involved Lactalis Australia Pty Ltd, trading as Lactalis Australia Pty Ltd, and the Fair Work Commission (FWC) regarding the application for approval of the Lactalis Australia Pty Ltd - Brisbane Operations Enterprise Agreement 2019. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The application was heard by the Full Bench of the Fair Work Commission, comprising Deputy President M King and Members G Williams and P Saunders.

The key legal issues before the court were whether the enterprise agreement contained the required minimum terms as stipulated by the Fair Work Act, whether the agreement was made in good faith and whether it complied with procedural requirements. The court needed to determine if the agreement was genuinely negotiated and whether it contained the mandated minimum terms, including provisions for minimum wages, classification of employees, and other employment conditions. Furthermore, the court had to assess whether the agreement was appropriately certified by an independent third party as being made in good faith.

The Full Bench found that the agreement did not meet the statutory requirements for approval. The decision highlighted deficiencies in the procedural compliance and the lack of evidence to support the assertion that the agreement was genuinely negotiated in good faith. The court emphasised the importance of procedural integrity and the necessity for clear evidence of good faith negotiation. Consequently, the application for approval was dismissed. The court's decision underscored the rigorous standards that must be met for enterprise agreements to be validly certified and approved under the Fair Work Act.

Lactalis Australia Pty Ltd T/A Lactalis Australia Pty Ltd

DECISION

Annexure A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established