George Weston Foods Limited t/a Tip Top Bakeries

[2020] FWCA 4982

[2020] FWCA 4982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

George Weston Foods Limited t/a Tip Top Bakeries
(AG2020/2433)

TIP TOP NSW ENTERPRISE AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 SEPTEMBER 2020

Application for approval of the Tip Top NSW Enterprise Agreement 2020.

[1] Tip Top Bakeries has applied for approval of a single enterprise agreement known as the Tip Top NSW Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and the Agreement passes the better off overall test. Further information was provided in relation to these concerns.

[3] The relevant employees were notified of the time, place and method of voting on the first day of the access period and not by the start of its commencement as required by s.180(3). 1 The applicant has requested the Commission exercise its discretion which was not opposed by the bargaining representative. The circumstances of this matter include that the non-compliance was limited to one day, the evidence of participation in the vote establishes a relatively high proportion of participation in the vote and an overwhelming majority of those who voted in support of the Agreement. In all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others2 I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The United Workers' Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 16 September 2020 and, in accordance with s.54, will operate from 23 September 2020. The nominal expiry date of the Agreement is 1 August 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   See also CFMMEU and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732 at [42].

 2   [2019] FWCFB 318.