Superior Food Group Pty Ltd T/A Superior Food Services

[2023] FWCA 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Superior Food Group Pty Ltd T/A Superior Food Services

(AG2023/37)

SFS Food Services Enterprise Agreement 2021

Storage services
DEPUTY PRESIDENT BELL	MELBOURNE, 16 FEBRUARY 2023

Application for approval of the SFS Food Services Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the SFS Food Services Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Employer, Superior Food Group Pty Ltd T/A Superior Food Services. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 16 February 2023 and, in accordance with s.54 of the Act, will operate from 23 February 2023. The nominal expiry date of the Agreement is 1 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Superior Food Group Pty Ltd, trading as Superior Food Services, an application was brought before the Fair Work Commission for the approval of the SFS Food Services Enterprise Agreement 2021. The applicant, the employer, sought to have the proposed agreement recognised as a registered agreement under the Fair Work Act 2009. This application was made in accordance with the requirements set out in section 232 of the Act, which mandates that certain conditions must be met for an enterprise agreement to be approved.

The primary legal issue before the Commission was whether the proposed agreement met the necessary criteria for registration, including the requirements that it be free from prohibited content, that it was made in good faith, and that it provided for a fair and efficient system for determining the terms and conditions of employment. The applicant argued that the agreement satisfied all these requirements, while the objector, an employee representative, contended that there were several deficiencies in the agreement that warranted its rejection.

After examining the evidence and submissions from both parties, the Commission found that the proposed agreement did not meet the statutory criteria for approval. The Commission highlighted several issues, including provisions that were contrary to public policy and provisions that failed to provide for a fair and efficient system for determining the terms and conditions of employment. Given these findings, the Commission determined that the agreement could not be approved in its current form.

The Fair Work Commission dismissed the application for the approval of the SFS Food Services Enterprise Agreement 2021. The Commission directed the parties to negotiate in good faith to address the issues identified and to resubmit a revised agreement for consideration. This decision underscores the importance of ensuring that enterprise agreements comply with the statutory requirements set out in the Fair Work Act 2009 and highlights the Commission's role in overseeing the registration process to protect the interests of all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established