Fresh To Go Foods Pty Ltd

[2025] FWCA 1591

[2025] FWCA 1591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Fresh To Go Foods Pty Ltd

(AG2025/1151)

FRESH TO GO FOODS (SA PRODUCTION/WAREHOUSE) ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 12 MAY 2025

Application for approval of the Fresh To Go Foods (SA Production/Warehouse) Enterprise Agreement 2025

Introduction

1. Fresh To Go Foods Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fresh To Go Foods (SA Production/Warehouse) Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Food, Beverage and Tobacco Manufacturing Award 2020 (the Award).

Agreement Expiry

1. Clause 1.4 of the Agreement states that the Agreement shall have an expiry of 30 June 2029 which more than four years after approval and therefore inconsistent with s.186(5) of the Act.

1. The Employer has provided an undertaking to address this issue.

Personal/ Carer’s Leave

1. Clause 6.2(e) provides that an employee shall, as soon as reasonably possible and within 24 hours of commencement of an absence due to personal/carer’s leave, inform the Employer of his/her ability to attend for duty. This appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

1. The Employer has provided an undertaking to address this issue.

Public Holidays

1. Clause 6.7(g) provides that by agreement between the Employer and the majority of employees in the relevant location or section of the workplace, an alternative day may be taken as the public holiday in lieu of any of the prescribed days. This is inconsistent with s.115(3) of the Act, which provides that public holidays can only be substituted by agreement between the employer and an individual employee. 

1. The Employer has provided an undertaking to address this issue.

Better off Overall Test (BOOT) Issues

1. The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:

1. Clause 5.1 of the Agreement provides for an ordinary span of hours of between 5am to 7pm, while clause 12.2(d) of the Award states, ‘The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (6.00 am to 6.00 pm) may be moved up to one hour forward or one hour back by agreement between an employer and employees’ under varying circumstances. Remuneration rates for employees do not appear high enough to compensate for the increase in span of ordinary hours.

2. Clause 5.5 of the Agreement provides that the early morning shift commences between 3am and before 5am, while clause 24.1(b) of the Award states ‘early morning shift means any shift starting between 3.00 am (2.00 am for baking production employees) and 6.00 am (or 5.00 am if the span of ordinary hours is varied pursuant to clause 12.2(d))’ noting that clause 12.2(d) relates to moving the ordinary span by one hour. It appears the early morning shift span under the Agreement has been shortened when compared to the Award. Remuneration rates for employees do not appear to be high enough to compensate for the less beneficial early morning shift span.

1. Clause 24.3(c) of the Award states ‘An employee who works on a non-continuous afternoon or night shift must be paid 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate after 3 hours.’ The Agreement does not have such a provision. Employees not working consecutive shifts are likely to not be better off overall under the Agreement.

1. Clause 10.4 of the Award states ‘Where this award refers to a penalty rate, overtime rate or shift loading as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.’ The Agreement does not have such a provision. Casual employees are likely to not be better off overall under the Agreement.

Section 190 Undertakings

1. The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached as Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2025. The nominal expiry date of the Agreement is 12 May 2029.

DEPUTY PRESIDENT

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