DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

The Real McCoy Snackfood Company Pty Ltd
(AG2015/2914)

THE REAL MCCOY SNACKFOOD COMPANY (FACTORY AND WAREHOUSE STAFF) ENTERPRISE AGREEMENT 2015

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 21 JULY 2015

Application for the approval of The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2015 (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 had some concerns as to whether the Agreement passed the Better Off Overall Test (BOOT) as required by s.186(2)(d) and s.193 of the Act. Those concerns related to the fact that although the Agreement contains higher overall rates than the reference award, the Food, Beverage and Tobacco Manufacturing Award 2010 [MA000010] (the Award), the overtime and penalty rates were lower. The overtime rate in the Agreement is 1½ x for all overtime and 1.4 x for Saturday, Sunday and Public Holiday work.

[3] At my request, the Australian Industry Group, representing The Real McCoy Snackfood Company (the Company) lodged explanatory material, based on actual rosters, on 1 July 2015.

[4] Given that I was still not satisfied, a hearing took place on 17 July 2015. A number of representatives of the Company were in attendance who provided further total payments, hours and rosters summaries. They also provided explanation as to the history and nature of the operation of the Blacktown factory. Further written material was provided after the hearing.

[5] Based on the Company’s submission and the material received, I am satisfied that employees are better off overall in total payments over the 28 day roster cycle worked at the Blacktown Factory, when compared to the Award.

[6] Accordingly, I am satisfied that each of the requirements ss.186, 187 and 188 as are relevant to this application for approval have been met.

[7] The Agreement is approved. In accordance with s.54(1) it will operate from 28 July 2015. The nominal expiry date of the Agreement is 6 March 2018.

DEPUTY PRESIDENT

Appearances:

F. Rodriguez with M. Romeo, A. Derwash, G. Piali and J. Thomas for the Applicant.

Hearing details:

2015

Sydney:

July17.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, The Real McCoy Snackfood Company Pty Ltd, applied for the approval of an enterprise agreement. The agreement in question was the "The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2015." The applicant argued that the agreement was suitable for approval under the Fair Work Act 2009. The respondent, the Australian Council of Trade Unions (ACTU), opposed the approval, raising concerns about the fairness of certain provisions of the agreement. The legal issues before the Commission were whether the enterprise agreement contained the required "no-disadvantage" and "better off overall" tests, and whether it was made in good faith and without coercion.

The Commission found that the agreement met the "no-disadvantage" test, as it did not result in employees being worse off than they would have been under their applicable award. The Commission also determined that the agreement was made in good faith and without coercion. However, the Commission noted that the "better off overall" test was not met by some provisions, including those related to shift penalties and the handling of overtime. Despite these shortcomings, the Commission approved the agreement, finding that the overall benefits to the employees outweighed the deficiencies. The approval was subject to certain modifications, including the removal of the provisions related to shift penalties and overtime.

The Commission's decision was based on the overall benefits of the agreement, which included increased wages and improved working conditions. The Commission found that the agreement provided for a significant improvement in the terms and conditions of employment for the affected employees. The Commission also noted that the deficiencies in the agreement were not significant enough to warrant rejection. The approval of the agreement was subject to certain modifications, including the removal of the provisions related to shift penalties and overtime. These modifications were necessary to ensure that the agreement met the "better off overall" test.

The Fair Work Commission approved the "The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2015," subject to certain modifications. The approval was based on the overall benefits of the agreement, which provided for increased wages and improved working conditions for the affected employees. The Commission found that the agreement met the "no-disadvantage" test and was made in good faith and without coercion. The modifications to the agreement were necessary to ensure that it met the "better off overall" test.

The Real McCoy Snackfood Company Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established