Lactalis Australia Pty Ltd Trading AS Lactalis Australia
[2025] FWCA 1262
•16 APRIL 2025
| [2025] FWCA 1262 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Lactalis Australia Pty Ltd Trading AS Lactalis Australia
(AG2025/337)
LACTALIS AUSTRALIA PTY LTD – BRISBANE OPERATIONS ENTERPRISE AGREEMENT 2025
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 16 APRIL 2025 |
Application for approval of the Lactalis Australia Pty Ltd – Brisbane Operations Enterprise Agreement 2025
Lactalis Australia Pty Ltd T/A Lactalis Australia (“the Employer”) has applied for approval of an enterprise agreement known as the Lactalis Australia Pty Ltd – Brisbane Operations Enterprise Agreement 2025 (“the Agreement”). The Application was made under s.185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.
The Employer’s application was accompanied by a copy of the Agreement signed on behalf of the employer and signed “for” each of three unions. The signatory for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the ETU”) did not include his position when signing. On 31 March 2025 the ETU filed a revised signatory page with the relevant position.
Even with the revised signatory page from the ETU, it is arguable that the Agreement has not been signed as required under section 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (“the Regulations”), because the signatory pages do not state that the three union signatories signed in their capacity as bargaining representatives,[1] and no other employee representative signed the Agreement. It is not in dispute, and there is no doubt, that each of those three unions was a bargaining representative.[2] In an abundance of caution, and to the extent necessary to do so:
(a) I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the ETU’s initial omission of the title of the signatory, and the three unions’ omission of an explicit statement, on the signatory pages, that they were signing as bargaining representatives on behalf of employees covered by the Agreement; and
(b) I also exercise the power in section 218A of the Fair Work Act to correct or amend an obvious error, defect or irregularity by substituting the original signature page for the ETU, with the revised page filed by the ETU on 31 March 2025.
In my view the power under section 218A of the Fair Work Act can be exercised at the time of approval.[4] Now, having made those corrections, I will deal with other matters that must be considered.
After having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of ss.186, 187, and 188 of the Act as are relevant to this application for approval have been met.
Noting clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Act will prevail where there is an inconsistency between the Agreement and the NES.
Each of the following organisations, being a bargaining representative for the agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement:
(a) The Australian Workers' Union;
(b) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union; and
(c) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
In accordance with subsection 201(2) of the Fair Work Act, and relying on the organisations’ declarations, I note that the Agreement covers each of those organisations.
The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 30 June 2028.
DEPUTY PRESIDENT
[1] CFMMEU v Griffiths Cranes Pty Ltd[2019] FWCFB 1717 (McKenna C, [122]-[123]).
[2] Application for approval of an enterprise agreement filed by Lactalis Australia Pty Ltd t/a Lactalis Australia on 13 February 2025; Declaration of employee organisation (form F18) filed by The Australian Workers' Union (AWU) on 13 February 2025; Declaration of employee organisation (form F18) filed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia on 13 February 2025; Declaration of employee organisation (form F18) filed by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 14 February 2025.
[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.)[2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd[2019] FWCFB 1717, [40]-[46].
[4] By analogy with The State of Victoria [2020] FWCA 5215 in which the similar power under section 217 of the Fair Work Act 2009 (Cth) was exercised at the time of approval.
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