MSM Milling Pty Ltd
[2025] FWCA 500
•7 FEBRUARY 2025
| [2025] FWCA 500 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
MSM Milling Pty Ltd
(AG2024/5244)
MSM MILLING EMPLOYEE COLLECTIVE WORKPLACE AGREEMENT 2024
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER SLOAN | SYDNEY, 7 FEBRUARY 2025 |
Application for approval of the MSM Milling Employee Collective Workplace Agreement 2024
MSM Milling Pty Ltd has applied for approval of an enterprise agreement known as the MSM Milling Employee Collective Workplace Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
There are two issues with the notice of employee representational rights that MSM Milling provided to the employees. First, the document does not conform to the requirements of s 174 of the Act. Rather, it appears to be based on a superseded version of the prescribed form. Second, the NERR was issued to employees on 4 October 2024. It gave notice that MSM Milling was bargaining in relation to an enterprise agreement “which is proposed to cover employees that are employed in the MSM Milling business under one of the classification levels specified in the agreement”. However, there is no evidence that at that time the employees had a copy of the proposed agreement, or the classification levels specified in it. It follows that it is not clear how employees would have been aware at the time of receiving the NERR, other than through having done so, that MSM Milling intended the proposed agreement to apply to them.
However, on all of the information that has been provided to me, I consider these to be minor procedural or technical errors of the nature contemplated by s 188(5) of the Act. I am satisfied that the employees are not likely to have been disadvantaged by the errors. As a result, I will disregard them.
The Employer has provided written undertakings, a copy of which is attached in Annexure A. The Commission sought the views of the United Workers Union (“UWU”), which was a bargaining representative for the Agreement, in respect of the undertakings. The UWU supports the approval of the Agreement with the undertakings.
I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement. Pursuant to s 190(3) of the Act, I accept the undertakings. They are taken to be a term of the Agreement.
Clause 6.4 of the Agreement is titled “Compassionate Leave”. On its face, it does not reflect all of the circumstances in which s 104(1) of the Act confers an entitlement to compassionate leave. That said, clause 2.3 of the Agreement provides that where there is an inconsistency between the benefits conferred by the National Employment Standards and the terms of the Agreement, the NES will prevail. This should ensure that clause 6.4 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.
Having regard to the undertakings and the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The UWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the UWU.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 14 February 2025. The nominal expiry date of the Agreement is 1 December 2027.
COMMISSIONER
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Annexure A
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