TIP TOP NSW MERCHANDISING ENTERPRISE AGREEMENT 2025

Application for approval of the Tip Top NSW Merchandising Enterprise Agreement 2025

[1] George Weston Foods Limited (Employer) has made an application for approval of an enterprise agreement known as the Tip Top NSW Merchandising Enterprise Agreement 2025 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval has been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the Statement of Principles,[1] and the Employer's responses to the issues raised.

[3] One of the issues identified concerned the applicable penalty for night shift where ordinary hours are worked after 6:00pm. I have accepted the Employer's submission that it does not roster employees to work ordinary hours after 6:00pm and that it is not reasonably foreseeable that it will roster employees to work ordinary hours after 6:00pm (see s.193A of the FW Act). I note that if those circumstances change an application under s.227A is available for a reconsideration of the better off overall test.

[4] In responding to the night shift penalty issue, the Employer submitted that there was a typographical error in clause 16.1 of the Agreement in that the span of hours for night shift is to conclude at 5:00am not 6:00am.

[5] Having regard to the material before me, I am satisfied that clause 16.1 of the Agreement contains an obvious error as contemplated by s.218A, and that I should exercise my discretion to amend the Agreement by deleting 16.1 and inserting in its place:

16.1. Night Shift - An employee whose ordinary hours of work are between midnight Sunday and midnight the following Friday and who are rostered within the hours of 6.00 p.m. one day and 5.00 a.m. the following day, shall be paid a shift loading of 20 per cent of the ordinary hourly rate of the employee's classification for each hour so worked. Saturday Shift - An employee working ordinary hours of work between midnight Friday and midnight Saturday shall be paid a shift loading of 50%of the ordinary hourly rate of the employee's classification for each hour so worked.

[6] I observe that clause 36.1(a) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The United Workers' Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) of the FW Act, I note that the Agreement covers the UWU.

[8] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 25 December 2025. The nominal expiry date of the Agreement is 1 August 2027.

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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