DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Union of Workers
(AG2018/7164)

NATURE’S DAIRY AUSTRALIA PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER YILMAZ	MELBOURNE, 2 JULY 2019

Application for approval of the Nature’s Dairy Australia Pty Ltd and National Union of Workers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Nature’s Dairy Australia Pty Ltd and National Union of Workers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the National Union of Workers. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The National Union of Workers (NUW) 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 9 July 2019. The nominal expiry date of the Agreement is 1 August 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicant, Nature’s Dairy Australia Pty Ltd, sought approval of an enterprise agreement with the National Union of Workers. The agreement in question was made under the Fair Work Act 2009, and the dispute centred on whether the agreement met the necessary requirements for approval, specifically concerning the process by which the agreement was made. The Union argued that the agreement was not fairly made because the employer did not provide sufficient information to the Union for proper consideration and negotiation.

The court was required to determine whether the employer had failed to provide the Union with sufficient information to allow for meaningful bargaining, which is a prerequisite for the approval of an enterprise agreement. This involved examining the adequacy of the information provided by the employer and whether the Union had sufficient opportunity to consider and respond to the proposed terms. The court also needed to assess if the agreement was made in good faith and whether the process complied with the statutory requirements outlined in the Fair Work Act.

The court found that the employer had indeed failed to provide sufficient information to the Union, thus impeding the negotiation process and rendering the agreement not fairly made. The court emphasised that meaningful bargaining requires adequate information and an opportunity for the Union to respond. As a result, the court did not approve the enterprise agreement. The decision underscored the importance of transparency and good faith in the negotiation process to ensure that agreements are made in a manner that is fair and complies with statutory requirements.

The final order of the court was that the application for approval of the enterprise agreement was dismissed. The court directed that the employer and the Union must engage in further bargaining to rectify the deficiencies identified in the current agreement, with a focus on ensuring that the Union is provided with adequate information and an opportunity to participate meaningfully in the negotiation process.

National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established