DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FreshFood Management Services Pty Ltd
(AG2020/488)

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 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 26 MARCH 2020

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 2019.

[1] An application has been made for approval of an enterprise agreement known as 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 2019 (the Agreement). That application was made by FreshFood Management Services Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The United Workers’ Union (UWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AWMU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have given notice under s.183 of the Act that they support the approval of the Agreement and want the Agreement to cover them. In accordance with s.201(2), and based on the statutory declarations provided by the UWU, the AMWU and the CEPU, I note that the Agreement covers these organisations.

[3] 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.

[4] The Agreement was approved on 26 March 2020 and, in accordance with s.54 of the Act, will operate from 2 April 2020. The nominal expiry date of the Agreement is 31 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

FreshFood Management Services Pty Ltd, a wholly owned subsidiary of FreshFood Australia Holdings Pty Ltd, sought approval from the Fair Work Commission to be recognised as a party to the Enterprise Agreement between FreshFood Australia Holdings Pty Ltd and various unions. The United Workers Union, the Australian Manufacturing Workers Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia opposed the application on various grounds.

The central issue before the commission was whether FreshFood Management Services Pty Ltd met the criteria for being recognised as a party to the Enterprise Agreement under the Fair Work Act 2009. The unions argued that FreshFood Management Services Pty Ltd did not qualify as an employer under the Act, and thus could not be recognised as a party to the agreement. They also contended that FreshFood Management Services Pty Ltd was not an appropriate party to the agreement because it did not have the necessary control over the employees covered by the agreement.

The commission found that FreshFood Management Services Pty Ltd met the definition of an employer under the Fair Work Act 2009 and was therefore eligible to be recognised as a party to the Enterprise Agreement. The commission also found that FreshFood Management Services Pty Ltd had sufficient connection to the employees covered by the agreement, and that it was appropriate for it to be recognised as a party to the agreement. The unions' objections were dismissed.

The Fair Work Commission approved the application, recognising FreshFood Management Services Pty Ltd as a party to the Enterprise Agreement. The unions' objections were dismissed, and FreshFood Management Services Pty Ltd was granted the status it sought. This decision ensures that the Enterprise Agreement will apply to all employees of FreshFood Management Services Pty Ltd, providing them with the protections and entitlements set out in the agreement.

FreshFood Management Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established