Snack Brands Australia, a partnership between Snack Brands Industries Pty Limited and Snack Brands Foods Pty Limited T/A Snack Brands Australia Summary

[2022] FWC 2587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.318 - Application for an order relating to instruments covering new employer and transferring employees

Snack Brands Australia, a partnership between Snack Brands Industries Pty Limited and Snack Brands Foods Pty Limited T/A Snack Brands Australia

(AG2022/3989)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 27 SEPTEMBER 2022

Application for Orders relating to instruments covering new employer and transferring employees in agreements

Snack Brands Australia (Applicant) has made an application pursuant to s.318 of the Fair Work Act 2009 (Cth) (Act) for orders that the Real McCoy Snackfood Company (Factory & Warehouse Staff) Enterprise Agreement 2019 (Agreement) not cover the Applicant and transferring employees in respect of employees transferring from employment with The Real McCoy Australia Pty Ltd (The Real McCoy) to the Applicant. A further order is sought seeking that the Snack Brands Australia Operations Agreement 2022 apply to former employees of The Real McCoy who are employed by the Applicant to perform work at its facility at Orchard Hills, New South Wales, within the scope of the classifications referred to in the Agreement.

The Applicant has filed a witness statement in support of its application, made by Ms Abeda Derwash (signed 19 February 2022). In determining whether or not to make the orders sought by the Applicant, and in taking into account each of the matters set out in s.318(3) of the Act, I have relied upon the evidence of Ms Derwash. Specifically, I note that a majority of the relevant transferring employees who chose to attend the Applicant’s information sessions support the order/s sought by the Applicant, and that any relevant transferring employees will not be disadvantaged (in their terms and conditions of employment) if the orders sought are made. I take the matters set out under s.318(3)(d) to (f) of the Act to be neutral considerations that do not weigh against the making of the orders sought, and that there are no public interest concerns in making the orders.

Taking into account the matters set out in s.318(3) of the Act, on an individual and collective basis, I have determined to exercise my discretion to make the orders sought by the Applicant pursuant to s.318(1) of the Act. Orders in this regard will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Snack Brands Australia, a partnership between Snack Brands Industries Pty Limited and Snack Brands Foods Pty Limited T/A Snack Brands Australia, applied to the Fair Work Commission for orders that the Real McCoy Snackfood Company (Factory & Warehouse Staff) Enterprise Agreement 2019 would not cover them and the transferring employees in respect of employees transferring from employment with The Real McCoy Australia Pty Ltd to Snack Brands Australia. Snack Brands Australia also sought an order that the Snack Brands Australia Operations Agreement 2022 apply to former employees of The Real McCoy who are employed by Snack Brands Australia to perform work at its facility at Orchard Hills, New South Wales, within the scope of the classifications referred to in the Agreement.

The court was required to determine whether or not to make the orders sought by Snack Brands Australia and in taking into account each of the matters set out in s.318(3) of the Fair Work Act 2009 (Cth) (Act), determine if any relevant transferring employees will be disadvantaged (in their terms and conditions of employment) if the orders sought are made. The court also considered the matters set out under s.318(3)(d) to (f) of the Act and whether there were any public interest concerns in making the orders.

The court relied upon the evidence of Ms Abeda Derwash, who provided a witness statement in support of Snack Brands Australia's application. The court noted that a majority of the relevant transferring employees who chose to attend the Applicant’s information sessions support the order/s sought by the Applicant, and that any relevant transferring employees will not be disadvantaged (in their terms and conditions of employment) if the orders sought are made. The court took the matters set out under s.318(3)(d) to (f) of the Act to be neutral considerations that do not weigh against the making of the orders sought, and that there were no public interest concerns in making the orders. The court exercised its discretion to make the orders sought by Snack Brands Australia pursuant to s.318(1) of the Act.

Snack Brands Australia, a partnership between Snack Brands Industries Pty Limited and Snack Brands Foods Pty Limited T/A Snack Brands Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established