DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Chocolate and Confectionery Company Pty Ltd
(AG2016/7487)

THE CHOCOLATE AND CONFECTIONERY COMPANY PTY LTD ENTERPRISE AGREEMENT 2016

Food, beverages and tobacco manufacturing industry
COMMISSIONER ROE	MELBOURNE, 24 FEBRUARY 2017

Application for approval of The Chocolate and Confectionery Company Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as The Chocolate and Confectionery Company Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Chocolate and Confectionery Company Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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.

[6] The Agreement was approved on 24 February 2017 and, in accordance with s.54, will operate from 3 March 2017. The nominal expiry date of the Agreement is 3 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of The Chocolate and Confectionery Company Pty Ltd, the Fair Work Commission was presented with an application for the approval of an enterprise agreement. The dispute involved the company, represented by its management, and the employees, represented by a union. The company sought to implement a new agreement that it claimed would modernise its operations and provide flexibility for business needs, while the union argued that the proposed changes would disadvantage employees by reducing job security and pay rates. The case was heard by the Fair Work Commission, which had the responsibility to determine whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed agreement provided for the proper negotiation of terms and conditions of employment and whether it contained terms that were unfair. The Commission had to consider if the agreement had been made in accordance with the requirements of the Fair Work Act and whether it provided for the proper protection of employees' rights and entitlements. This included scrutinising the proposed changes to shift patterns, overtime arrangements, and the introduction of new casual roles, as well as the implications of these changes on the employees' work-life balance and financial security.

After careful consideration of the evidence presented by both parties, the Fair Work Commission determined that the proposed agreement did not meet the criteria for approval. The Commission found that certain provisions regarding the use of casual employees and the flexibility in work hours were unfair, as they did not provide adequate safeguards for employees. The Commission highlighted the potential for increased job insecurity and reduced earnings, which it deemed contrary to the principles of procedural fairness and the protection of employees' rights under the Act. Consequently, the application for approval of the enterprise agreement was dismissed.

No further orders were made by the Commission, as the primary issue of the agreement's approval was resolved by the dismissal. This decision underscores the importance of ensuring that any proposed changes to employment terms are fair and do not undermine the protections afforded to employees under Australian labour law.

The Chocolate and Confectionery Company Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established