The Smith’s Snackfood Company Limited

[2019] FWCA 2612

[2019] FWCA 2612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Smith’s Snackfood Company Limited
(AG2019/748)

THE SMITH’S SNACKFOOD COMPANY (SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2019-2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER PLATT	ADELAIDE, 16 APRIL 2019

Application for approval of The Smith’s Snackfood Company (South Australia) Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as The Smith’s Snackfood Company (South Australia) Enterprise Agreement 2019-2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Smith’s Snackfood Company Limited. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 29 March 2019.

[3] On 11 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 15 April 2019. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  Despite clause 11 of the Agreement, notice of termination will be provided in accordance with the NES.

•  Despite clause 32.1.2 of the Agreement, employees will be entitled to four weeks annual leave which will accrue progressively.

•  Despite clause 32.1.3 of the Agreement, shift workers will be entitled to 5 weeks annual leave which will accrue progressively in accordance with the NES.

•  The Dispute Procedure in clause 6 of the Agreement will apply to disputes other than those arising under clause 48.7 of the Agreement.

•  Despite clause 17.7.3 of the Agreement, casual employees at Levels - 0, 1, 2 or 3 will be engaged or paid for a minimum of 4 hours on each occasion they work, provided that they may request an engagement for no less than 3 hours.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The National Union of Workers sought that clause 7.1.2 of the consultation and employee involvement clause be retained. Section 205(2) of the Act requires the Commission to insert the Model Consultation Term into the Agreement as a result of clause 7 of the Agreement not meeting the requirements of section 205(1) and (1A) of the Act. Insofar as the terms of clause 7 are not inconsistent with the Model Consultation Term, they will continue to apply.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)”, the “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)” and the “National Union of Workers (NUW)” being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 28 February 2022.

COMMISSIONER

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