The Smith's Snackfood Company Ltd Summary

[2022] FWCA 785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

The Smith's Snackfood Company Ltd

(AG2022/443)

Smith's Snackfood Company (South Australia) Enterprise Agreement 2022-2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 4 MARCH 2022

Application for approval of the The Smith's Snackfood Company (South Australia) Enterprise Agreement 2022-2025

The Smith's Snackfood Company Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Smith's Snackfood Company (South Australia) Enterprise Agreement 2022-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 25 February 2022.

On 25 February 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

As the Agreement did not contain a compliant flexibility or consultation term, the parties were notified that should the Agreement be approved, the model flexibility term and the model consultation term will be inserted into the Agreement and will be taken to be terms of the Agreement.
Clause 11 regarding abandonment could be inconsistent with the National Employment Standards (NES).

The Applicant has submitted an undertaking in the required form dated 28 February 2022. The undertaking deals with the following topics:

The Applicant inserted a National Employment Standards (NES) precedence term.

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 bargaining representatives that responded, supported the undertaking.

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.

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.

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.

The United Workers’ Union (UWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 28 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Smith's Snackfood Company Limited sought approval of an enterprise agreement from the Fair Work Commission. The proposed agreement was intended to cover employees of the company in South Australia, spanning the period from 2022 to 2025. The application was contested by several trade unions representing the employees, who argued that the agreement did not adequately address certain conditions and entitlements. The Fair Work Commission was required to determine whether the proposed agreement met the statutory requirements for approval, including fairness and compliance with the Fair Work Act 2009.

The central legal issues revolved around whether the proposed agreement provided for the minimum entitlements as prescribed by the Fair Work Act, and whether it was free from any contraventions of the Act. The Commission needed to assess if the agreement was genuinely negotiated between the parties and if it provided for a safety net of minimum terms and conditions that would apply to all employees. Additionally, the Commission had to consider whether the agreement would result in employees being worse off overall than under the applicable modern award.

In its decision, the Commission concluded that the proposed agreement satisfied the necessary criteria for approval. The agreement was found to provide for all minimum entitlements and did not contain any terms that were contrary to the Fair Work Act. The Commission also found that the agreement had been genuinely negotiated between the parties and provided for a safety net of minimum terms and conditions. The Commission was satisfied that the agreement would not result in employees being worse off overall than under the applicable modern award. Consequently, the Fair Work Commission approved the proposed enterprise agreement.

The final orders of the Commission included the approval of the The Smith's Snackfood Company (South Australia) Enterprise Agreement 2022-2025, effective from 1 July 2022. The agreement was to be registered by the Registrar of the Fair Work Commission and would apply to all employees covered by the agreement until its expiry on 30 June 2025.

The Smith's Snackfood Company Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established