The Smith's Snackfood Company Pty Limited Trading As The Smith's Snackfood Company

[2025] FWCA 3065

[2025] FWCA 3065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Smith’s Snackfood Company Pty Limited Trading As The Smith’s Snackfood Company

(AG2025/2574)

THE SMITH’S SNACKFOOD COMPANY (SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2025-2028.

Food, beverages and tobacco manufacturing industry
COMMISSIONER ALLISON	MELBOURNE, 19 SEPTEMBER 2025

Application for approval of The Smith’s Snackfood Company (South Australia) Enterprise Agreement 2025 – 2028

1. ​​The Smith’s Snackfood Company Pty Limited Trading As The Smith’s Snackfood Company​ (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as ​The Smith’s Snackfood Company (South Australia) Enterprise Agreement 2025-2028​ (the Agreement).

1. The ​ United Workers’ Union​ 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.

1. The Agreement contains a limited consultation provision at Clause 7.1 which does not encompass all matters required to be included in a consultation clause in s. 205 of the Act. Pursuant to s 205(2) of the Act, the model consultation term as prescribed by the Fair Work (Model Terms) Determination 2025 will be taken to be an additional term of the Agreement.

1. There were a number of Better Off Overall Test (BOOT) concerns relating to this application when the Agreement was compared to the Food, Beverage and Tobacco Manufacturing Award 2020 (‘Food Award’) and/or the Manufacturing and Associated Industries and Occupations Award 2020 (“Manufacturing Award”):  

·   The Awards include a number of the safe guards around the rostering part-time work which are not included in the Agreement. The Employer has addressed this concern by providing undertakings that part-time employees will receive additional safeguards around rostered hours (see undertaking 1 attached at Annexure A). I am satisfied the undertakings have resolved this issue.

·   The Agreement rates of pay in relation to First Year and Second Year adult apprentices are below the rates in the Awards. The Employer has addressed this concern by providing an undertaking that First Year and Second Year adult apprentices shall receive no less than minimum rates of pay prescribed than under the applicable Award (see undertaking 2 attached at Annexure A). I am satisfied the undertaking has resolved this issue.

·   Clause 30 of the Agreement provides Sunday penalty rates for employees engaged on regular Part Time Weekend night shift which are below the penalty rate in the Food Award. Employees classified at Level 0 engaged in regular Part Time Weekend night shift may not be better off under Agreement. The Employer provided an undertaking addressing this concern (see undertaking 3 attached at Annexure A). I am satisfied that the undertaking has resolved this issue.

·   Clause 31 of the Agreement provides overtime payments of 150% for the first three hours and 200% thereafter. This is inconsistent with clause 23.3 of the Food Award which provides that a continuous shift worker is entitled to 200% for all overtime. This may result in a continuous shift worker who regularly performs overtime not being better off under the Agreement. The Employer has addressed this concern by providing an undertaking that the Employer will undertake an annual audit to ensure continuous shiftworkers are better off than under the Food Award (see undertaking 4 attached at Annexure A). I am satisfied that the undertaking has resolved this issue.  

1. 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. The undertakings are taken to be a term of the agreement.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2025, notwithstanding the date specified in clause 1.4(a) of the Agreement. The nominal expiry date of the Agreement is 28 February 2028.  

COMMISSIONER

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ANNEXURE A