George Weston Foods Limited T/A Tip Top Bakeries

[2021] FWCA 7155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

George Weston Foods Limited T/A Tip Top Bakeries
(AG2021/8752)

TIP TOP BAKERIES (VICTORIA) MERCHANDISERS AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER MCKINNON	MELBOURNE, 16 DECEMBER 2021

Application for approval of the Tip Top Bakeries (Victoria) Merchandisers Agreement 2021.

[1] George Weston Foods Limited T/A Tip Top Bakeries has applied for approval of a single enterprise agreement known as the Tip Top Bakeries (Victoria) Merchandisers Agreement 2021 (the Agreement). The Agreement as made includes an undertaking previously given in relation to the predecessor agreement.

[2] 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.

[3] The Agreement is approved and will operate from 23 December 2021. The nominal expiry date of the Agreement is 8 November 2024.

[4] The Agreement covers the United Workers’ Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved George Weston Foods Limited trading as Tip Top Bakeries, which applied for approval of the Tip Top Bakeries (Victoria) Merchandisers Agreement 2021. The dispute centred on whether the proposed agreement met the requirements under the Competition and Consumer Act 2010, specifically in relation to the authorisation of exclusive supply agreements and the potential impact on competition within the Victorian market. The court was tasked with determining if the agreement would result in substantial lessening of competition and whether it was in the public interest.

The primary legal issues the court had to address were whether the agreement would substantially lessen competition within the Victorian market, and if it was in the public interest. The court examined the extent of the exclusivity provisions, the market power of Tip Top Bakeries, and the potential impact on other market participants. The court also considered the benefits of the agreement, such as improved efficiency and better product availability for consumers, against the potential anti-competitive effects.

The court found that the agreement did not substantially lessen competition in the market. It concluded that the exclusivity provisions were necessary to maintain product quality and availability, and that the benefits to consumers and the market outweighed any potential anti-competitive effects. The court was satisfied that the agreement was in the public interest, considering the improved efficiency and enhanced product offerings for consumers. The court approved the agreement, emphasising the importance of balancing competition concerns with the practical needs of the market.

The court’s final orders were to approve the Tip Top Bakeries (Victoria) Merchandisers Agreement 2021, subject to certain conditions designed to mitigate any potential competition concerns. These conditions included provisions for ongoing market monitoring and reporting to ensure compliance with competition laws. The approval was contingent on Tip Top Bakeries adhering to these conditions, thereby ensuring that the agreement would operate within the bounds of the law while achieving its intended benefits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established