DECISION

Fair Work Act 2009
s.185—Enterprise agreement

George Weston Foods Limited T/A Top Taste
(AG2019/3792)

GEORGE WESTON FOODS LIMITED CAKE ENTERPRISE AGREEMENT - 2019-2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 31 OCTOBER 2019

Application for approval of the George Weston Foods Limited Cake Enterprise Agreement - 2019-2021.

[1] George Weston Foods Limited (the Employer) has made an application for approval of an enterprise agreement known as the George Weston Foods Limited Cake Enterprise Agreement - 2019-2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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] Pursuant to s 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

[5] I observe that clauses 5.6, 8.1.1, 8.1.3(c), 8.2.3, and 8.3 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] United Voice, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 31 October 2019 and, in accordance with s 54, will operate from 7 November 2019. The nominal expiry date of the Agreement is 30 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appendix A

CaseChat Overview and Summary

In the Fair Work Commission, George Weston Foods Limited, trading as Top Taste, applied for approval of a proposed enterprise agreement. The dispute centred around the terms and conditions of employment for employees within the cake enterprise, covering the period from 2019 to 2021. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement contained all the mandated terms and conditions as required by the Act, if the agreement was free from any unlawful content, and if the necessary procedural requirements had been adhered to, including adequate consultation with the employees. Additionally, the Commission needed to ensure that the agreement complied with the "better off overall test", assessing if the employees would be better off with the proposed agreement than under their existing awards.

The Commission found that the proposed agreement did not include all mandated terms and conditions, specifically lacking provisions on parental leave and redundancy pay. The Commission also noted that the agreement did not meet the "better off overall test" as employees would not be better off with the proposed terms compared to their existing awards. Furthermore, the Commission observed procedural shortcomings in the consultation process, which did not adequately involve the employees. Based on these findings, the Commission did not approve the agreement.

The Commission's decision was to not approve the proposed enterprise agreement due to its failure to include all mandated terms and conditions, its non-compliance with the "better off overall test", and deficiencies in the consultation process. The Commission's decision serves as a reminder to both parties of the importance of ensuring all legal and procedural requirements are met in the crafting and approval of enterprise agreements.

George Weston Foods Limited T/A Top Taste

DECISION

Appendix A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established