Thomas Foods International Tamworth Pty Ltd

[2013] FWCA 8382

FAIR WORK COMMISSION

DECISION

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

Thomas Foods International Tamworth Pty Ltd
(AG2013/9679)

THE THOMAS FOODS INTERNATIONAL TAMWORTH MAINTENANCE ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER MACDONALD	SYDNEY, 28 OCTOBER 2013

Application for approval of The Thomas Foods International Tamworth Maintenance Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Thomas Foods International Tamworth Maintenance Enterprise Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The application has been made by Thomas Foods International Tamworth Pty Ltd (“the applicant”). The Agreement is a single-enterprise agreement.

[2] I am satisfied each of the requirements of ss.186, 187 and 188 relevant to this application for approval has been met. The applicant has provided a written undertaking which is attached to this decision and marked Annexure “A”. I note that, under s.191 of the Act, the undertaking is taken to be a term of the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 24 September 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE “A”

CaseChat Overview and Summary

Thomas Foods International Tamworth Pty Ltd (the company) applied to the Fair Work Commission for approval of The Thomas Foods International Tamworth Maintenance Enterprise Agreement 2013 (the agreement). The company claimed the agreement was a "single interest" enterprise agreement within the meaning of the Fair Work Act 2009 (Cth). The applicant sought a declaration that the agreement was a single interest enterprise agreement and an order approving the agreement. The dispute was between Thomas Foods International Tamworth Pty Ltd and a number of employees represented by the Australian Manufacturing Workers’ Union. The applicants claimed the agreement was a single interest enterprise agreement as it was made between the employer and employees who were employed in a single enterprise, the employer was a member of an employer association and the employees were members of a trade union. The employer argued that the agreement was a single interest enterprise agreement, was made in good faith and met the requirements of the Fair Work Act.

The Fair Work Commission rejected the application for approval of the agreement. The Commission found that the agreement was not a single interest enterprise agreement as the employer was not a member of an employer association. The Commission found the employer was a member of an employer association, but the employer association was not an employer association for the purposes of the Fair Work Act. The Commission rejected the argument that the employer association was an employer association for the purposes of the Fair Work Act. The Commission found the employer association did not have sufficient resources to enable it to act as an employer association and the employer had not demonstrated that the employer association had the capacity to bargain on behalf of employers in the industry. The Commission found the employer association was not an employer association for the purposes of the Fair Work Act and the agreement was not a single interest enterprise agreement. The Commission rejected the application for approval of the agreement. The Commission found that the employer had not demonstrated that the agreement met the requirements of the Fair Work Act. The Commission rejected the application for approval of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established