Application by The Australian Health & Nutrition Association Limited
Citation: [2026] FWCA 2325
At a glance
- Awards cited
- MA000036
What happened
The Australian Health & Nutrition Association Limited applied to the Fair Work Commission for approval of The Sanitarium Health Food Company – Berkeley Vale Production Enterprise Agreement 2026. The agreement covers employees at the Berkeley Vale production site. The United Workers’ Union (UWU) was a bargaining representative. Concerns were raised regarding clause 33.8 relating to personal/carer’s leave and the absence of penalty rates for non-continuous shifts. The Sanitarium Health Food Company argued non-continuous shifts were not reasonably foreseeable.
What was decided
The Fair Work Commission approved the enterprise agreement. A concern about clause 33.8 was resolved by relying on a clause that prioritises the National Employment Standards. The Commission accepted the Sanitarium Health Food Company’s argument that penalty rates for non-continuous shifts were not required due to the practice of continuous shift work. A delegates’ rights term was added by incorporating clause 30A of the Food, Beverage and Tobacco Manufacturing Award 2020. The agreement will operate from 7 September 2026 and expire on 7 September 2027.
What it means for employers
Employers should ensure enterprise agreements comply with the Fair Work Act, including sections 186 and 187. If shift work is continuous, this can be argued to exclude the need for penalty rates for non-continuous shifts when applying the 'better off overall test'.
What it means for employees
Employees should be aware of their rights under enterprise agreements. If an agreement lacks certain protections, such as penalty rates, it may be possible to argue that continuous shift work makes non-continuous shifts unforeseeable.
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections