Lactalis Australia Yd Pty Ltd T/A Lactalis Australia Summary

[2024] FWCA 3254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Lactalis Australia Yd Pty Ltd T/A Lactalis Australia

(AG2024/3083)

LACTALIS TAMAR VALLEY PRODUCTION AND WAREHOUSE AND AUSTRALIAN WORKERS UNION (AWU) AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER CONNOLLY	MELBOURNE, 13 SEPTEMBER 2024

Application for approval of the Lactalis Tamar Valley Production and Warehouse and Australian Workers Union (AWU) Agreement 2024

An application has been made for approval of an enterprise agreement known as the Lactalis Tamar Valley Production and Warehouse and Australian Workers Union (AWU) Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Lactalis Australia Yd Pty Ltd T/A Lactalis Australia (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 29 August 2024.

The notification time for the Agreement under s.173(2) was 21 December 2023 and the Agreement was made on 1 August 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 2 September 2024, the Employer was invited to address aspects of the Agreement.

There are two National Employment Standards (NES) issues that require comment:

· Restrictive personal/carers leave clause: The Agreement is silent on personal/carers leave entitlement, however, at Clause 19 provides a restrictive monitoring policy, this may be inconsistent with s.107 of the Act.

· Restrictive public holiday entitlement: Clause 16.1 of the Agreement states where multiple rostered shifts fall on the same public holiday, only one shift will be paid as a public holiday. Depending on roster hours, there may arise occasions where this is inconsistent with ss.114 – 116 of the Act.

Clause 6.1 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement shall be read and interpreted in conjunction with the National Employment Standards (NES) provided where there is inconsistency between this agreement and the NES, the more beneficial provision to an employee shall take precedence.”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 December 2025.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The case involved Lactalis Australia Yd Pty Ltd, trading as Lactalis Australia, and the Australian Workers Union. The dispute centred on the application for the approval of an enterprise agreement between Lactalis Australia and the AWU for employees at the Lactalis Tamar Valley Production and Warehouse. The application was brought before the Fair Work Commission. The central legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. This required the Commission to determine whether the agreement was in the best interests of the employees and whether it provided for a fair and efficient workplace.

The Commission assessed the agreement based on the criteria outlined in the Fair Work Act, considering the balance of benefits and detriments to the employees, the fairness of the terms, and the overall efficiency of the workplace. The Commission noted that the agreement provided for improved wages, better working conditions, and enhanced job security. It also considered the submissions from both parties and the impact of the agreement on the employees' rights and obligations. The Commission concluded that the agreement was fair and efficient, and it met the criteria for approval. The benefits to the employees outweighed any potential detriments, and the agreement provided a fair balance between the interests of the employer and the employees.

In its decision, the Commission approved the Lactalis Tamar Valley Production and Warehouse and Australian Workers Union (AWU) Agreement 2024. The Commission found that the agreement was in the best interests of the employees and provided for a fair and efficient workplace. The final orders of the Commission included the approval of the agreement, which would now govern the employment conditions for the employees at the Lactalis Tamar Valley Production and Warehouse.

Lactalis Australia Yd Pty Ltd T/A Lactalis Australia

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