Garage Beverages Manufacturing Pty Ltd

[2025] FWC 2888

[2025] FWC 2888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Garage Beverages Manufacturing Pty Ltd

(AG2025/2152)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BELL	MELBOURNE, 29 SEPTEMBER 2025

Application for an order relating to instruments covering new employer and non-transferring employees - application granted.

1. Garage Beverage Manufacturing Pty Ltd (the Applicant and New Employer) has applied for an order under section 319(1)(b) of the Fair Work Act 2009 (Cth) (the Act) to the effect that the transferable instrument, the Campari Australia Pty Ltd – Product Supply Chain Enterprise Agreement 2024 (the Agreement) will cover existing non-transferring employees as at the date of transfer, 22 May 2025.

1. The Agreement currently covers Campari Australia Pty Ltd. There are nine non-transferring employees, not covered by the Agreement that would be affected by the order applied for. These non-transferring employees work at the Applicant’s Sunline Drive site and are paid the Award rates, which are lower than the Agreement rates.

1. The United Workers’ Union (UWU), a bargaining representative of the Agreement, and a number of its members who are non-transferring employees are supportive of this order.

1. I have decided to grant the application. The following are my reasons for doing so.

The relevant legislation

1. Part 2-8 of the Act describes when a transfer of business occurs. It also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.

1. Section 311(1) defines “transfer of business”, and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 of the Act empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to non-transferring employees.

1. In deciding whether to make orders of this kind, the Commission must take into account the factors set out in section 319(3) of the Act.

Consideration

1. The Agreement was approved by the Commission on 18 July 2024 and its nominal expiry date is 1 April 2027. It is a transferable instrument for the purposes of section 312(1)(a) of the Act.

1. I am satisfied that there is a transfer of business between Campari Australia Pty Ltd and Garage Beverage Manufacturing Pty Ltd for the purposes of section 311(1).

The views of the Applicant and employees affected by the order

1. The Applicant has expressed the view that new non-transferring employees will be better off overall if they are covered by the Agreement than if they were to remain covered by the Award. I accept the submission, which is consistent with the decision of the Commission on 18 July 2024 to approve the Agreement on grounds including that it passed the better off overall test.

1. At the time the application was made, there were nine non-transferring employees affected by the proposed order. On 1 August 2024, the UWU was advised of the application to have the Agreement cover the non-transferring employees. The UWU notified Chambers on 7 August that it supports the application and understands that the non-transferring employees who are its members also support the application.

Whether any employees would be disadvantaged by the order

1. Transferring employees will not be disadvantaged by the orders sought as it will have no effect on them. New non-transferring employees performing work covered by the Agreement will see their position improved by coverage of the Agreement instead of the Award.

Nominal expiry date of the Agreement

1. The nominal expiry date of the Agreement is 1 April 2027.

Whether the Agreement would have a negative impact on productivity at Garage Beverages Manufacturing Pty Ltd

1. The Applicant submits that existing non-transferring employees will be paid in accordance with the Agreement, therefore the granting of the order will not have a negative impact on the productivity or engagement of the new employer’s workplace.

1. I am satisfied that granting the orders will promote productivity, efficiency and workplace harmony by reducing the administrative burden on the Applicant while ensuring that employees performing the same work have the same minimum terms and conditions of employment.

Whether Garage Beverages Manufacturing Pty Ltd would incur significant economic disadvantage by coverage of the Agreement

1. The Applicant submits that it will incur some, insignificant economic disadvantage if the order is granted, offset by the productivity and efficiency gains described above.

Degree of business synergy between the Agreement and other workplace instruments

1. The Applicant submits that the synergies created by the granting of the order would create cost savings, by combining resources (personnel, plant and technology) to improve efficiencies in productivity. There is nothing before me to contradict the assertion and accordingly, I accept it.

The public interest

1. The Applicant submits that the granting of the order is in the public interest as the transfer of the non-transferring employees to be covered by the Agreement will prevent an underpayment of existing non-transferring employees (relative to other employees who would otherwise be covered by the Agreement). There is no indication on the materials to the effect that granting the application would adversely affect the public interest. I am satisfied that it is not contrary to the public interest to make the orders sought.

Conclusion

1. For the reasons above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.

1. An Order[1]to this effect will be issued along with this decision.

DEPUTY PRESIDENT

[1]  PR792216.

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