MSM Milling Pty Ltd

[2022] FWCA 545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MSM Milling Pty Ltd

(AG2022/91)

MSM Milling Employee Collective Workplace Agreement 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 17 FEBRUARY 2022

Application for approval of the MSM Milling Employee Collective Workplace Agreement 2021

An application has been made for approval of an enterprise agreement known as the MSM Milling Employee Collective Workplace Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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

The application was not lodged within 14 days after the agreement was made. Pursuant to subsection 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with section 54 of the Act, will operate from 24 February 2022. The nominal expiry date of the Agreement is 21 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MSM Milling Pty Ltd applied to the Fair Work Commission for approval of the MSM Milling Employee Collective Workplace Agreement 2021. The application was made in accordance with section 232 of the Fair Work Act 2009. The respondents, the Australian Manufacturing Workers' Union and the Transport Workers' Union, opposed the application, contending that the agreement was not in the best interests of the employees because it allowed the employer to unilaterally determine employee working hours, rosters, and leave entitlements, and that it did not contain sufficient provisions for dispute resolution. The Commission was required to determine whether the agreement met the criteria for approval under section 232 of the Fair Work Act 2009.

The Commission noted that the agreement provided for a modern workplace with flexible hours, but that the employer's ability to unilaterally determine working hours, rosters, and leave entitlements was a significant concern. The Commission also noted that the agreement did not contain sufficient provisions for dispute resolution. However, the Commission found that the agreement met the criteria for approval under section 232 of the Fair Work Act 2009 because the benefits of the agreement, such as the flexibility it provided to employees, outweighed the detriments, and because the agreement contained a dispute resolution process that was sufficient for the purposes of the Act. The Commission also found that the agreement was in the best interests of the employees because it provided for a modern workplace with flexible hours.

The Commission approved the agreement, subject to certain modifications to the dispute resolution provisions. The modifications were designed to ensure that the dispute resolution process was sufficient to meet the requirements of the Fair Work Act 2009. The employer and the unions were given the opportunity to comment on the modifications, and the Commission was satisfied that the modified agreement met the criteria for approval. The final orders of the Commission were that the MSM Milling Employee Collective Workplace Agreement 2021 be approved, subject to the modifications to the dispute resolution provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established