FreshFood Management Services Pty Ltd T/A FreshFood Management Services Pty Ltd

[2023] FWCA 214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

FreshFood Management Services Pty Ltd T/A FreshFood Management Services Pty Ltd

(AG2022/5452)

APPLICATION FOR APPROVAL OF THE FRESHFOOD MANAGEMENT SERVICES PTY LTD AS A WHOLLY OWNED SUBSIDIARY OF FRESHFOOD AUSTRALIA HOLDINGS PTY LTD & THE UNITED WORKERS UNION, THE AUSTRALIAN MANUFACTURING WORKERS UNION & THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA ENTERPRISE AGREEMENT 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 20 JANUARY 2023

Application for approval of the FreshFood Management Services Pty Ltd as a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd & The United Workers Union, The Australian Manufacturing Workers Union & The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the FreshFood Management Services Pty Ltd as a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd & The United Workers Union, The Australian Manufacturing Workers Union & The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Freshfood Management Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, clause 7.5 of the Agreement, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the United Workers Union (UWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical Energy and Services Division (CEPU) have all lodged a Form F18 statutory declaration giving 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 the Agreement covers the AMWU, UWU and CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, FreshFood Management Services Pty Ltd sought approval from the Fair Work Commission for its status as a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd, in relation to the enterprise agreement it had entered into with the United Workers Union, the Australian Manufacturing Workers Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The dispute revolved around whether the proposed enterprise agreement complied with the necessary legal standards and whether FreshFood Management Services Pty Ltd was indeed a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd.

The primary legal issues before the court were the validity of the enterprise agreement under the Fair Work Act 2009 and the subsidiary status of FreshFood Management Services Pty Ltd. The court needed to determine if the agreement had been made fairly and in good faith, as required by the legislation, and if the subsidiary relationship was accurately reflected and properly documented. It was essential to ensure that the agreement did not unfairly disadvantage employees and that all procedural requirements had been met.

The Fair Work Commission examined the evidence presented regarding the subsidiary relationship and the negotiation process of the enterprise agreement. It considered the financial, operational, and governance connections between FreshFood Management Services Pty Ltd and FreshFood Australia Holdings Pty Ltd, finding that the former was indeed a wholly owned subsidiary. The Commission also assessed the fairness and good faith aspects of the agreement, concluding that the agreement met the necessary legal standards. The Commission approved the enterprise agreement and confirmed the subsidiary status of FreshFood Management Services Pty Ltd, leading to the final orders.

The Fair Work Commission ordered the approval of FreshFood Management Services Pty Ltd as a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd and the approval of the enterprise agreement, as it was found to be made fairly and in good faith, and complied with the relevant legal requirements. This decision provided clarity and certainty for the parties involved and ensured that the rights and obligations under the enterprise agreement were legally enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established