MSM Milling Pty Ltd Summary

[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 Rather, it appears to be based on a superseded version of the prescribed form.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

MSM Milling Pty Ltd applied to the Fair Work Commission for approval of the MSM Milling Employee Collective Workplace Agreement 2024. The application was brought by the employer, MSM Milling, which sought to establish a new workplace agreement to govern the terms and conditions of employment for its employees. The matter was heard by the Commission, led by Senior Deputy President Stewart, who was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement satisfied the criteria for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement was genuinely a workplace agreement, whether it was made free from coercion, duress, or unfair tactics, and whether it complied with the requirements of the Act regarding the bargaining process. The Commission also had to determine whether the agreement provided for a fair and efficient workplace, as mandated by the Act.

The Commission found that the proposed agreement was genuinely a workplace agreement and that it had been made free from coercion, duress, or unfair tactics. The Commission noted that the bargaining process had been conducted in accordance with the requirements of the Act, and that the agreement provided for a fair and efficient workplace. The Commission also found that the agreement met the requirements of the Act regarding the bargaining process, and that it provided for a fair and efficient workplace. The Commission approved the proposed agreement, subject to certain minor modifications to ensure compliance with the Act.

The Commission's final orders included the approval of the MSM Milling Employee Collective Workplace Agreement 2024, subject to the modifications outlined in the decision. The Commission also ordered that the agreement be registered with the Fair Work Commission, and that it take effect from the date of the decision. The decision provides important guidance on the requirements for approving workplace agreements under the Fair Work Act, and highlights the importance of ensuring that agreements are genuinely negotiated and provide for a fair and efficient workplace.

MSM Milling Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established