Farmfresh Fine Foods Pty Ltd As Trustee For The Farmfresh Fine Foods Trust T/A Farmfresh Fine Foods

[2024] FWCFB 181

[2024] FWCFB 181

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 7, Item 30(4) - Application to extend default period for enterprise agreements made during the bridging period

Farmfresh Fine Foods Pty Ltd As Trustee For The Farmfresh Fine Foods Trust T/A Farmfresh Fine Foods

(AG2023/4650)

FARMFRESH FINE FOODS ENTERPRISE AGREEMENT 2009

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN      DEPUTY PRESIDENT GRAYSON	SYDNEY, 21 MARCH 2024

Application to extend the default period for the FarmFresh Fine Foods Enterprise Agreement 2009

1. Pursuant to subitem 30(4) of Sch 7 to the Fair  Work  (Transitional  Provisions  and Consequential  Amendments)  Act  2009 (Cth), Farmfresh Fine Foods Pty Ltd as Trustee for the Farmfresh Fine Foods Trust t/as Farmfresh Fine Foods (the Applicant) has applied to extend the default period for the FarmFresh Fine Foods Enterprise Agreement 2009 (the Agreement).

1. The application is made in accordance with subitem 30(6)(a) on the ground that under subitem (7) bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so.

1. The Full Bench in ISS Health Services  Pty  Ltd[1] described the requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is made. Although that case involved a Division 2B State employment agreement to which Sch 3A of the Act applies, the principles are identical to those applying to agreements to which Sch 7 applies. The requirements are as follows:

i.The application was made after the notification time for the proposed enterprise agreement;

ii.The proposed enterprise agreement covers the same employees as the Agreement; and

iii.Bargaining for the proposed enterprise agreement is occurring.

1. The Applicant has provided material to the Commission which establishes that a notice of employee representational rights was issued to all staff on 24 October 2023 and that bargaining meetings have occurred on 27 November 2023, 15 December 2023 and 22 January 2024. The application to extend the Agreement was made on 29 November 2023. Both the Agreement and the agreement that is being negotiated apply to 32 employees.

1. The Applicant is seeking an extension of the Agreement until 30 June 2024 as it considers that this is a reasonable estimation of when an Agreement will be approved by the Commission. The Applicant will then be able to transition from the Agreement directly to a new enterprise agreement without first reverting to the Food, Beverage and Tobacco Manufacturing Award 2020.

1. The Employer says it pays employees the hourly rates they would be entitled to under  the Award including casual loading. The Agreement replicates many of the provisions of the Award including span of hours, public holiday rates and overtime rates where overtime is required by the employer. The employees do not appear to be worse off under the Agreement compared to the Award.

1. We are satisfied on the material provided that the requirements in subitem (7) are met and that it is appropriate to extend the default period. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[2] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[3]

1. The Applicant has been bargaining for a replacement agreement for a period of four months with 32 employees and no matters of complexity or difficulty have been identified by the Applicant. We therefore consider that an extension until 31 May 2024 is sufficient time for a replacement agreement to be made and approved.

1. Pursuant to item 30A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement, is extended until 31 May 2024.
   

1. The Agreement is published, in accordance with subitem 30A(9A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122

[2] [2023] FWCFB 105 at [18]

[3] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31].

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