George Western Foods Limited T/A Tip Top Bakeries

[2023] FWCA 447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

George Western Foods Limited T/A Tip Top Bakeries

(AG2023/23)

Tip Top Capalaba 2022 Agreement

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 16 FEBRUARY 2023

Application for approval of the Tip Top Capalaba 2022 Agreement

An application has been made for approval of an enterprise agreement known as the Tip Top Capalaba 2022 Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by George Western Foods Limited T/A Tip Top Bakeries (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.

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.

The Agreement does not contain a flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement does not contain a consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Noting clause 5 of the Agreement, 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 United Workers’ Union (UWU) lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the UWU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of George Western Foods Limited T/A Tip Top Bakeries, the court considered an application for the approval of a collective agreement. The application was brought before the Fair Work Commission, as the applicant sought to have the agreement recognised under the Fair Work Act 2009. The agreement, known as the Tip Top Capalaba 2022 Agreement, was intended to cover employees working at the Capalaba site. The dispute centred on whether the agreement was an appropriate tool for facilitating fair and equitable employment terms and conditions.

The central legal issue before the court was whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the court had to determine whether the agreement was a simple, genuine and direct product of the parties' own bargaining, free from any improper influence or pressure. Additionally, the court needed to assess if the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the relevant provisions of the Act and the National Employment Standards.

In reaching its decision, the court examined the evidence presented by the parties. The applicant provided documentation and testimony that demonstrated the agreement was the result of genuine and direct bargaining between the employer and the employees. The court also considered whether the terms of the agreement were fair and reasonable, taking into account industry benchmarks and relevant awards. After thorough consideration of the evidence, the court was satisfied that the agreement met the necessary criteria for approval. The court found that the agreement was genuine, directly negotiated between the parties, and provided for fair and reasonable terms and conditions of employment.

Consequently, the court approved the Tip Top Capalaba 2022 Agreement. The agreement was registered under the Fair Work Act, effective from the date of the decision. The final orders of the court confirmed the approval of the agreement and directed the parties to comply with its terms. The decision provided clarity and legal certainty for the employer and employees involved, ensuring that the agreement would be recognised as a binding contract under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established