Foodmach Pty Ltd T/A Foodmach

[2021] FWCA 6080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Foodmach Pty Ltd T/A Foodmach
(AG2021/7516)

FOODMACH PTY LTD COLLECTIVE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the Foodmach Pty Ltd Collective Agreement 2021.

[1] Foodmach Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Foodmach Pty Ltd Collective Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 September 2021.

[3] On 28 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Chambers sought additional information concerning agreement pre-approval requirements including, notice emails sent to employees, provision of agreement/incorporated materials and agreement explanation.

• The parties were notified that that should the Agreement be approved, the approval decision will note that the Agreement will commence 7 days following approval pursuant to s.54(1)(a) of the Act as opposed to the commencement date in clause 5 of the Agreement.

• Clauses 9.3: public holidays, 13.2.2: deduction, 17.3: termination, 30.1: annual leave, 31.1, 31.8 and 31.9: personal/carer’s leave, 35: parental leave and 50: family/domestic violence leave, were inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 7.2 of the Agreement is deemed to resolve these concerns.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement, have 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 these organisations.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

Foodmach Pty Ltd T/A Foodmach applied to the Fair Work Commission for the approval of the Foodmach Pty Ltd Collective Agreement 2021. The applicant, a food machinery manufacturer, sought to establish the terms and conditions of employment for its workers under a new collective agreement. The application was made by the employer and involved multiple unions representing the employees. The unions argued that the proposed agreement did not adequately protect the employees' rights and conditions of employment.

The legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009, including compliance with the "better off overall test" (BOOT) and the "good faith" bargaining requirement. The unions contended that the agreement did not provide sufficient protections for employees, particularly in relation to pay rates, penalty rates, and other conditions. They argued that the proposed agreement did not meet the BOOT and was not the product of good faith bargaining.

The Fair Work Commission found that the proposed agreement did not meet the requirements of the Act. The Commission determined that the agreement did not provide adequate protections for employees in several areas, including pay rates, penalty rates, and other conditions. The Commission also found that the agreement was not the product of good faith bargaining, as the employer had not provided sufficient information to the unions during the bargaining process. As a result, the Commission did not approve the proposed agreement.

The Fair Work Commission did not approve the Foodmach Pty Ltd Collective Agreement 2021, finding that it did not meet the requirements of the Fair Work Act 2009. The Commission determined that the agreement did not provide adequate protections for employees and was not the product of good faith bargaining. The employer and unions will need to renegotiate the agreement to address the Commission's concerns and meet the legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established