New Food Coatings Pty Ltd T/A Newly Weds Foods

[2014] FWCA 7839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

New Food Coatings Pty Ltd T/A Newly Weds Foods
(AG2014/7922)

NEW FOOD COATINGS PTY LTD ENTERPRISE AGREEMENT 2014

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 5 NOVEMBER 2014

Application for approval of the New Food Coatings Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the New Food Coatings Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] As the Agreement does not contain a flexibility term, the model flexibility term is taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure A.

[4] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved. In accordance with s.54(1) it will operate from 12 November 2014. The nominal expiry date of the Agreement is 26 May 2017.

DEPUTY PRESIDENT

Annexure A.

Model flexibility term

(1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

(a) the agreement deals with 1 or more of the following matters:

(i) arrangements about when work is performed;

(ii) overtime rates;

(iii) penalty rates;

(iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and

(2) The employer must ensure that the terms of the individual flexibility arrangement:

(a) are about permitted matters under section 172 of the Fair Work Act 2009; and

(b) are not unlawful terms under section 194 of the Fair Work Act 2009; and

(3) The employer must ensure that the individual flexibility arrangement:

(a) is in writing; and

(b) includes the name of the employer and employee; and

(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

(d) includes details of:

(i) the terms of the enterprise agreement that will be varied by the arrangement; and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

(e) states the day on which the arrangement commences.

(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

(5) The employer or employee may terminate the individual flexibility arrangement:

(a) by giving no more than 28 days written notice to the other party to the arrangement; or

(b) if the employer and employee agree in writing—at any time.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

New Food Coatings Pty Ltd, trading as Newly Weds Foods, applied for approval of the New Food Coatings Pty Ltd Enterprise Agreement 2014, before the Fair Work Commission. The applicant, a food manufacturing company, sought to have the enterprise agreement approved as a protected action agreement. The dispute centred on the terms and conditions of employment of the employees, which were outlined in the proposed agreement. The applicant argued that the agreement should be approved as it met the statutory criteria and was in the best interests of the employees.

The primary legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009. The applicant had to demonstrate that the agreement was a protected action agreement and that it met the necessary criteria under the Act, including being a genuinely negotiated agreement and meeting the procedural requirements. The applicant also needed to show that the agreement was in the best interests of the employees, taking into account factors such as the agreement's impact on the employees' terms and conditions of employment and the overall fairness of the agreement.

The Fair Work Commission found that the applicant had satisfied the requirements for the approval of the enterprise agreement. The Commission determined that the agreement was a genuinely negotiated agreement, as it had been negotiated between the parties in good faith and met the procedural requirements. The Commission also found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment and took into account the needs and interests of the employees. The Commission approved the enterprise agreement as a protected action agreement.

The Fair Work Commission approved the New Food Coatings Pty Ltd Enterprise Agreement 2014 as a protected action agreement. The Commission found that the agreement met the statutory criteria and was in the best interests of the employees. The applicant's application for approval of the enterprise agreement was successful, and the agreement will now be in effect for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established