Fresh To Go Foods Pty Ltd

[2025] FWCA 2648

[2025] FWCA 2648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fresh To Go Foods Pty Ltd

(AG2025/2576)

FRESH TO GO FOODS PTY LTD (VICTORIAN PRODUCTION/WAREHOUSE) ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER REDFORD	MELBOURNE, 15 AUGUST 2025

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

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

Undertakings

1. In response to several issues raised with Fresh To Go Foods in relation to its application, it has provided written undertakings, a copy of which are attached in 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.  

1. The undertakings relate to:   

a.   Span of hours – variation to ordinary hours

b.   Minimum engagement

c.   Matters to be agreed upon and recorded before the commencement of employment of a part time employee

d.   Trainees

e.   Non continuous shift work

Interaction with the National Employment Standards

1. Clause 1.9 of the Agreement provides that it is to be read and interpreted in conjunction with the National Employment Standards (NES)  and where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.The Agreement provides for requirements as to notice and evidence required in respect to personal, carers and compassionate leave. The NES provides that notice in respect to personal leave must be given to an employer “as soon as practicable”, which may be a time after the leave has started. Evidence in relation to using these entitlements must be that which would satisfy a reasonable person. In so far as the more prescriptive requirements in the Agreement may be inconsistent with the NES, the NES precedence clause provides it will prevail over these aspects of the Agreement.

b.Clause 6.4(a) of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

Consideration

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.

1. The United Workers’ Union (UWU) 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 UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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ANNEXURE A