Malanda Dairyfoods Pty Ltd

[2023] FWCA 2124

[2023] FWCA 2124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Malanda Dairyfoods Pty Ltd

(AG2023/1471)

BEGA MALANDA PRODUCTION, LOGISTICS & LABORATORY ENTERPRISE

Agreement 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER HUNT	BRISBANE, 11 JULY 2023

Application for approval of the Bega Malanda Production, Logistics & Laboratory Enterprise Agreement 2022

1. Malanda Dairyfoods Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Bega Malanda Production, Logistics & Laboratory Enterprise Agreement 2022 (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.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided a written undertaking and submissions. A copy of the undertaking is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (AWU) regarding the undertaking, allowing a period of two business days from receipt of the undertaking to provide any views. No views were provided.

1. Following review of the Employer’s submissions, I inquired as to what shift and penalty rates apply to casual workers pursuant to clause 36.3 of the Agreement and requested the Employer to detail each penalty paid and the hourly rate to be paid for each classification. On 21 June 2023, the Employer provided a wage analysis and submitted the following:

·  Overtime rates are to be paid as per clause 29.1 of the Agreement and calculated on the rate under clause 36.3 (no casual loading).

·  Public holiday rates are to be paid as per the incorporated Award because the Agreement is silent for casuals and calculated on the rate under clause 36.3 (no casual loading).

·  Weekend work are to be paid as per clause 30.3 of the Agreement; and

·  There are no shift allowances payable under the Agreement.

1. In consideration of the Employer’s response and the wage analysis, I am satisfied that the Agreement passes the Better Off Overall Test.

1. I am also satisfied that the undertaking, as referred to in paragraph [2], will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.  Pursuant to s.190 of the Act, I accept the undertaking.  In accordance with s.201(3) of the Act, I note that the undertaking is taken to be a term of the Agreement.

1. I have taken into consideration the material filed in the Commission. Subject to the undertaking 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.

1. The AWU 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 the AWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2023.  The nominal expiry date of the Agreement is 12 December 2025.

COMMISSIONER

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Annexure A – Undertaking