Loaded rates, abandonment clauses, and a 0.30% casual margin
Arnott's Biscuits got its new enterprise deal across the line - but not before the Fair Work Commission flagged a handful of clauses that appeared to clash with minimum employment standards.
The Commission approved the Arnott's (Marleston Manufacturing) Enterprise Agreement 2026 on November 11, covering manufacturing employees under the Food, Beverage and Tobacco Manufacturing Award 2020. The United Workers Union was the bargaining representative.
The holiday swap that needed individual consent
Three provisions caught the Commission's attention for appearing inconsistent with the National Employment Standards - the baseline employee entitlements set out in the Fair Work Act 2009.
The first was a public holiday substitution clause that allowed the employer and a majority of employees to agree on swapping a public holiday for another day. Under the Act, that kind of arrangement can only be made between the employer and an individual employee. A group vote does not cut it.
Then there was the abandonment of employment clause. Under the agreement, a worker absent without reasonable cause during a notice period could be deemed to have abandoned their job - and forfeit their notice pay. The Commission pointed out that the Act does not strip employees who abandon their employment of the right to minimum notice of termination.
The third issue was redundancy. The agreement said redundancy entitlements might not apply where an employee had less than one year's continuous service. The Commission found this appeared broader than the Act allows, potentially leaving workers without the redundancy pay they would otherwise be entitled to.
On the abandonment clause specifically, the agreement's own built-in safeguard helped: a clause stating that the NES prevails wherever there is a conflict.
A 0.30% margin and the better-off test
The Commission also examined whether employees were genuinely better off under the agreement than they would be under the award - a test every enterprise agreement must pass before it gets the green light.
Shift workers at the site receive loaded rates - a single pay rate designed to roll in compensation for shift work, weekend work, extended shifts, and public holidays - set at 25.45% above the award. The Commission found the arrangement vague. It was unclear exactly which entitlements were being rolled into the rate, and whether 25.45% actually covered them all.
The agreement also required employees to work an average of 38.5 hours per week, with the extra half-hour not attracting overtime rates. For level 1 casuals, the agreement rate sat just 0.30% above the award. The employer submitted it did not employ level 1 casuals and did not foresee doing so, which satisfied the Commission.
A similar question arose around time off in lieu of overtime. The agreement allowed employees to take TOIL at a one-for-one rate, but it was missing two standard safeguards found in the award: a requirement to take the time off within six months, and a requirement for unused TOIL to be paid out when employment ends. The employer told the Commission that TOIL was not actually used at the site - employees banked and took rostered days off instead - and the Commission accepted that.
Fixes made, deal approved
To resolve the issues, the employer provided written undertakings, which the Commission accepted and which now form part of the agreement.
The agreement takes effect from November 18, 2026 and runs until November 11, 2028.
The Commission also granted a separate application to fix typographical errors in the agreement, update the table of contents, and add page numbers - minor housekeeping that went through without objection.
For HR teams drafting or reviewing enterprise agreements, the decision reads like a compliance checklist: loaded rate clauses that do not clearly spell out what they offset, abandonment provisions that override statutory notice entitlements, and TOIL arrangements missing standard award protections. Getting the deal across the line is one thing. Getting the clauses right before lodgement is cheaper.
