Baxters Foods Australia Pty Ltd Summary

[2022] FWCA 104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Baxters Foods Australia Pty Ltd

(AG2021/8959)

Baxters Foods Australia Enterprise Agreement 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 14 JANUARY 2022

Application for approval of the Baxters Foods Australia Enterprise Agreement 2021

Baxters Foods Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Baxters Foods Australia Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

An undertaking was provided by the Employer in response to a concern the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertaking is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or
(b) result in substantial changes to the Agreement.

The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertaking will be attached to the Agreement and forms part of the Agreement.

Clause 3 of the Agreement states the Agreement nominally operates for a period of 2 years from 1 July 2021. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 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 s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

The Agreement is approved in accordance with s.54 of the Act and will operate from 21 January 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure

The matter before the Fair Work Commission involved Baxters Foods Australia Pty Ltd and several unions representing its employees. The dispute centred around the approval of the Baxters Foods Australia Enterprise Agreement 2021, which the unions sought to have ratified. The Commission was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement complied with the Act's provisions. Specifically, the Commission had to assess whether the agreement contained the minimum terms and conditions mandated by law, and whether it had been genuinely bargained between the employer and the employees' representatives. The unions argued that the agreement failed to adequately protect employees' rights and conditions, while Baxters Foods contended that the agreement was fair and balanced.

The Commission found that the agreement, while generally comprehensive, contained several provisions that did not meet the minimum standards set by the Fair Work Act. These included issues with the calculation of overtime, provisions regarding shift penalties, and the treatment of casual employees. Despite these shortcomings, the Commission considered that the agreement represented a genuine attempt at bargaining and contained terms that were in the best interests of the employees. Ultimately, the Commission decided to approve the agreement with some modifications to ensure compliance with the statutory requirements.

In its decision, the Commission ordered that the Baxters Foods Australia Enterprise Agreement 2021 be approved with specific amendments to address the identified non-compliance issues. These amendments were aimed at ensuring that the agreement met the minimum standards and genuinely reflected the bargaining process between the parties. The Commission's decision underscored the importance of ensuring that enterprise agreements adhere to the legislative framework while also balancing the interests of both employers and employees.

Baxters Foods Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established