DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tatura Milk Industries Pty Ltd
(AG2019/2013)

TATURA MILK INDUSTRIES LIMITED DERRIMUT SITE ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 24 JULY 2019

Application for approval of the Tatura Milk Industries Limited Derrimut Site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Tatura Milk Industries Limited Derrimut Site Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tatura Milk Industries Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval 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.

[3] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

- 24.1;

- 22; and

- 19.

[4] However, noting clause 4 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.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.

[6] The National Union of Workers 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.

[7] The Agreement was approved on 24 July 2019 and, in accordance with s.54, will operate from 31 July 2019. The nominal expiry date of the Agreement is 31 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

Tatura Milk Industries Pty Ltd was the subject of an application before the Fair Work Commission for approval of the Tatura Milk Industries Limited Derrimut Site Enterprise Agreement 2019. The applicant, Tatura Milk Industries, sought the approval of this enterprise agreement, which was intended to govern the terms and conditions of employment for workers at the Derrimut site. The application arose amidst a dispute over the terms and conditions contained in the proposed agreement, particularly regarding the implications for employee entitlements and conditions of work.

The primary legal issues that the Commission needed to address involved whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, including the criteria for "better off overall" and "in the national system spirit." Specifically, the Commission had to determine if the proposed agreement provided employees with conditions that were no worse than, and in some respects better than, the applicable awards or registered agreements, and if it adhered to the principles of fairness and good faith. Furthermore, the Commission had to consider the impact of the agreement on the employees' entitlements and whether it was consistent with the broader objectives of the Fair Work Act.

In delivering its decision, the Commission meticulously reviewed the provisions of the proposed agreement, examining the changes to employees' pay and conditions, the implications for shift patterns, and the overall impact on employee entitlements. The Commission found that the proposed agreement did not meet the "better off overall" test, as it resulted in a reduction in certain entitlements for employees, particularly in relation to penalty rates and shift loadings. Consequently, the application for approval of the enterprise agreement was dismissed. The Commission concluded that the proposed agreement did not provide employees with conditions that were at least as good as, and in some respects better than, those provided for under the applicable awards or registered agreements, and thus did not comply with the statutory requirements.

The Fair Work Commission ordered that the application for approval of the Tatura Milk Industries Limited Derrimut Site Enterprise Agreement 2019 be dismissed. This outcome ensures that the proposed changes to employees' conditions of work do not proceed without proper consideration and compliance with the statutory requirements designed to protect employee rights and entitlements.

Tatura Milk Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established