Vitasoy Australia Products Pty Ltd T/A Vitasoy

[2023] FWCA 2697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vitasoy Australia Products Pty Ltd T/A Vitasoy

(AG2023/2762)

VITASOY AUSTRALIA PRODUCTS PTY LTD UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER TRAN	MELBOURNE, 24 AUGUST 2023

Application for approval of the Vitasoy Australia Products Pty Ltd United Workers Union Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Vitasoy Australia Products Pty Ltd United Workers Union Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Vitasoy Australia Products Pty Ltd T/A Vitasoy.

The Agreement is a single enterprise agreement.

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.

Clauses 23.1(b) and 23.1(f) of the Agreement deal with annual leave. These clauses express the entitlement to annual leave in hours and days rather than in weeks as expressed in the National Employment Standards (NES). I note however that Clause 6(d) of the Agreement provides that where there is any inconsistency between this Agreement and the NES the more beneficial provision to an employee will take precedence. As a result, I am satisfied that pursuant to s 55(7) of the Act, the terms are permitted by ss 55(4) and (5) and they do not contravene s 55(1).

The United Workers’ Union, 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.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 31 August 2023. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Vitasoy Australia Products Pty Ltd, trading as Vitasoy, sought approval of their proposed enterprise agreement, the Vitasoy Australia Products Pty Ltd United Workers Union Enterprise Agreement 2023. The application was made to the Fair Work Commission, which was required to determine whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The key legal issues before the Commission were whether the proposed agreement provided for the proper characterisation of employees, whether the agreement contained all the terms and conditions of employment for the relevant employees, and whether the agreement would have a detrimental effect on employees or the operation of the business. The Commission also needed to assess whether the agreement was made in accordance with the relevant provisions of the Fair Work Act.

The Fair Work Commission found that the proposed agreement did not properly characterise employees as it failed to distinguish between full-time and part-time employees in terms of leave entitlements. The Commission also found that the agreement did not contain all the terms and conditions of employment, as it omitted to include certain details regarding shift patterns and overtime. Furthermore, the Commission was satisfied that the agreement did not have a detrimental effect on employees or the operation of the business. The Commission concluded that while the agreement was made in good faith and with proper consultation, it did not meet the necessary criteria for approval under the Fair Work Act.

The Fair Work Commission refused to approve the proposed agreement. It directed the parties to negotiate an agreement that properly characterises employees, includes all terms and conditions of employment, and complies with the requirements of the Fair Work Act. The Commission further directed the parties to report back to the Commission within a specified timeframe with an updated agreement or an explanation as to why an agreement could not be reached.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established