Chocolatier (Australia) Pty Ltd

[2022] FWCA 2579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chocolatier (Australia) Pty Ltd

(AG2022/2449)

Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 1 AUGUST 2022

Application for approval of the Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022

An application has been made for approval of an enterprise agreement known as the Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Chocolatier (Australia) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

I observe that clause 39.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). Notwithstanding s 117(1) of the Act, clause 39.3 states that termination of employment by abandonment will operate as from the date of the last attendance at work, or the last day’s absence in respect of which consent was granted, or in respect of which notification was given to the Employer, whichever is the latter. However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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 8 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for the approval of a registered agreement, Chocolatier (Australia) Pty Ltd sought the approval of the Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022. The Australian Manufacturing Workers Union acted on behalf of the employees, and the matter was heard in the Fair Work Commission. The central dispute was whether the agreement met the legal standards for approval under the Fair Work Act 2009. Specifically, the application raised questions about whether the agreement adequately covered the terms of employment, including wages, hours of work, and other conditions, and whether it complied with the "better off overall test" as required by the legislation.

The court needed to decide if the Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022 provided fair and reasonable terms for the employees. This involved scrutinising the agreement's provisions to ensure they met the legal requirements for minimum wage rates, leave entitlements, and other conditions of employment. Additionally, the court had to assess whether the agreement was genuinely negotiated between the parties and whether it would provide the employees with a better outcome than if they were covered by the applicable awards or enterprise agreements.

The Fair Work Commission, after thorough examination of the agreement, concluded that the Chocolatier Australia Pty Ltd and the Australian Manufacturing Workers Union Agreement 2022 met the necessary criteria for approval. The court found that the agreement provided for fair and reasonable terms of employment and that it had been genuinely negotiated. Furthermore, the commission determined that the agreement satisfied the "better off overall test" as it provided employees with improved conditions compared to the applicable awards or enterprise agreements. Consequently, the application for approval was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established