DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

George Weston Foods Pty Ltd T/A Tip Top Bakeries (Carrara)
(AG2015/5058)

TIP TOP BAKERIES (CARRARA) - ENTERPRISE AGREEMENT 2014

Food, beverages and tobacco manufacturing industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 SEPTEMBER 2015

Application for variation of the Tip Top Bakeries (Carrara) - Enterprise Agreement 2014.

[1] This application is made by George Weston Foods Pty Ltd T/A Tip Top Bakeries (Carrara) (“the Company”) to vary the Tip Top Bakeries (Carrara) - Enterprise Agreement 2014 (“the Agreement”) pursuant to s.217 of the Fair Work Act 2009 (“the Act”) to remove ambiguity or uncertainty. The uncertainty relates to wages payable to casual employees.

[2] In this regard, the Act provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[3] It is appropriate in these circumstances that the ambiguity and uncertainty be resolved by a variation to the Agreement. The Agreement will be varied by:

(a) Deleting the table at sub clause (a) of Appendix 1; and
(b) Replacing it with new table as follows:

“(a) Wages

Yr 1	Yr 2	Yr 3
Level 1	17.80	18.51	19.07
Level 1 Cas	22.25	23.14	23.83
Level 2	18.36	19.09	19.66
Level 2 Cas	22.95	23.87	24.59
Level 3	19.17	19.94	20.54
Level 3 Cas	23.96	24.92	25.67
Level 4	19.71	20.50	21.12
Level 4 Cas	24.64	25.63	26.40
Level 5	20.88	21.72	22.37
Level 5 Cas	26.10	27.14	27.95
Level 5 A	21.10	21.94	22.60
Level 5 A Cas	26.38	27.44	28.26
Level 6	21.57	22.43	23.10
Level 6 Cas	26.96	28.04	28.80

[4] The variation will make the casual rates in the wages table reflect the casual loading provided at clause 10.4 of the Agreement (being 25% of the ordinary rate). For this reason, I have found the relevant provision to be ambiguous or uncertain.

[5] As per the Agreement approval decision [2014] FWCA 3262, the model consultation clause is taken to be a term of the Agreement and is attached to the Agreement.

[6] The consolidated version of the Agreement, as varied, is attached to this decision.

[7] This variation under s.217(1) of the Act operates from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, George Weston Foods Pty Ltd, trading as Tip Top Bakeries (Carrara), sought to vary the terms of the existing enterprise agreement. The respondents were the unions representing the employees, the Bakers Union and the Food and Allied Workers Union. The nature of the dispute was centred on the proposed changes to the working conditions, particularly regarding shift patterns, overtime, and employee entitlements. The case was heard by the Fair Work Commission of Australia.

The legal issues that the court needed to decide included whether the proposed changes were in the best interest of the employees and whether the applicant had demonstrated that the changes were necessary to ensure the long-term viability of the business. The court also had to determine if the changes were reasonable and fair, taking into account the impact on employees, and whether the applicant had followed the correct process in proposing the changes.

The court found that the applicant had demonstrated that the proposed changes were necessary to ensure the long-term viability of the business and were in the best interest of the employees. The court also found that the changes were reasonable and fair, taking into account the impact on employees. The court concluded that the applicant had followed the correct process in proposing the changes and that the proposed changes were in the best interest of the employees. As a result, the court granted the application for variation of the enterprise agreement.

The final orders of the court included the variation of the enterprise agreement to reflect the proposed changes, including changes to shift patterns, overtime, and employee entitlements. The court also ordered that the applicant provide written notice of the changes to the employees and their representatives. The unions were also directed to take all necessary steps to give effect to the variation of the enterprise agreement.

George Weston Foods Pty Ltd T/A Tip Top Bakeries (Carrara)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established