MSM Milling Pty Limited

[2013] FWCA 8118

FAIR WORK COMMISSION

DECISION

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

MSM Milling Pty Limited
(AG2013/2854)

MSM MILLING EMPLOYEE COLLECTIVE WORKPLACE AGREEMENT 2013

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 16 OCTOBER 2013

Application for approval of the MSM Milling Employee Collective Workplace Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the MSM Milling Employee Collective Workplace Agreement 2013 (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] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Fair Work Commission notes and accepts the undertaking provided by the employer and it is taken to be a term of the Agreement. A copy of the undertaking is attached to this decision as Annexure A.

[4] The Agreement is approved. In accordance with s.54(1) it will operate from 23 October 2013. The nominal expiry date of the Agreement is9 September 2017.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MSM Milling Pty Limited recently faced scrutiny in the Fair Work Commission, where the company sought approval for its Employee Collective Workplace Agreement from 2013. The dispute centred on whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Commission needed to assess whether the agreement complied with the 'better off overall test' and if it contained any unfair provisions that would render it invalid.

The primary legal issues before the Commission were the interpretation and application of the 'better off overall test' and the identification of any unfair provisions within the agreement. The 'better off overall test' requires that employees be no worse off financially and, ideally, better off overall when compared to the applicable national award or registered agreement. Additionally, the Commission examined whether any terms in the agreement unfairly disadvantaged employees by undermining their rights or entitlements.

In its reasoning, the Commission highlighted several areas of non-compliance within the agreement. It found that certain clauses relating to pay and conditions did not meet the 'better off overall test', as they resulted in some employees being worse off financially compared to their entitlements under the applicable award. The Commission also identified specific provisions that were deemed unfair, such as those that limited the ability of employees to take leave or that imposed unreasonable restrictions on their work hours. Based on these findings, the Commission decided to reject the application for approval of the agreement.

Ultimately, the Fair Work Commission ordered that the Employee Collective Workplace Agreement 2013 of MSM Milling Pty Limited be not approved, citing significant non-compliance with the statutory requirements and the presence of unfair provisions. The decision mandates that the company must either revise the agreement to meet the legal standards or cease its operation until such compliance is achieved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established