A & M Mikhael Investments Pty Ltd T/A Muffin Break Rouse Hill

[2010] FWA 6555

FAIR WORK AUSTRALIA

DECISION

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

A & M Mikhael Investments Pty Ltd T/A Muffin Break Rouse Hill
(AG2010/11232)

COMMISSIONER MCKENNA

SYDNEY, 24 AUGUST 2010

A & M Mikhael Investments Pty Ltd Employee Enterprise Agreement [2010].

[1] A & M Mikhael Investments Pty Ltd T/A Muffin Break Rouse Hill (“the applicant”) has made an application, pursuant to s.185 of the Fair Work Act 2009, seeking the approval of a single-enterprise agreement titled the A & M Mikhael Investments Pty Ltd Employee Enterprise Agreement [2010] (“the Agreement”).

[2] Upon my initial reading the papers, I had a number of preliminary concerns and queries about the application. These matters were raised briefly in correspondence to the applicant. Those concerns and queries went to matters including the responses provided in the Form F17 (Employer’s Declaration in Support of Application for Approval of Enterprise Agreement); and the correspondence also advised the applicant of cases which concerned applications for the approval of enterprise agreements which appeared to follow a template the same as, or similar to, those which had been considered previously by Fair Work Australia in a number of cases (relevantly commencing with Bendy Q Pty Ltd T/A Jamaica Blue Knox City & Ors[2009] FWA 1869).

[3] There was no appearance by or on behalf of the applicant at the initial listing of the matter due, it appears, to a misunderstanding by the applicant about the date of the listing. On the rescheduled hearing of the matter today, the proprietors of the applicant company, Mrs A Mikhael and Mr M Mikhael, appeared on their own behalf.

[4] One of the preliminary matters I raised in the proceedings, being a matter initially raised in the earlier correspondence, concerned notice of representational rights - given that there was no response in the Form F17 concerning the question seeking information about the date on which the last notice of representational rights was given.

[5] Mrs Mikhael explained that negotiations about an enterprise agreement had commenced with employees around September last year. At that time, the Mikhaels had engaged People in SmallBiz to assist in the making of an enterprise agreement. Despite having paid thousands of dollars for professional assistance in that regard, Mrs Mikhael said she had not heard anything from that business since about December 2009 in relation to a proposed enterprise agreement. In the circumstances, the Mikhaels had more recently this year endeavoured to make an enterprise agreement on their own, based on the template agreement and information package that had been provided earlier by People in SmallBiz. Mrs Mikhael said, however, that the information that had been provided by People in SmallBiz did not address the “finer details”, including information about giving notice of representational rights. Mrs Mikhael’s submissions confirmed that she did not know what a notice of representational rights is and, as such, none had been provided to the employees.

[6] I sympathised with the Mikhaels’ understandable disillusionment at having sought and paid for professional assistance in connection with their wish to make an agreement with their employees - in circumstances where this assistance was not, in the end, provided. Their submissions made it quite plain they had at all times wanted to do things properly concerning the making of an enterprise agreement with their employees.

[7] In circumstances where the requirements concerning notice of representational rights have not been met, the Agreement cannot, however, be approved. It is unnecessary to consider further matters including certain pre-approval steps, the lateness of the application and aspects of the content of the agreement itself.

[8] The application is dismissed.

COMMISSIONER

Appearances:

A. Mikhael and M. Mikhael on behalf of the applicant.

Hearing details:

Sydney

2010

August 24.

Printed by authority of the Commonwealth Government Printer

The case between A & M Mikhael Investments Pty Ltd, trading as Muffin Break Rouse Hill, and its employees was brought before the Fair Work Commission. The dispute centred around the interpretation and application of the Employee Enterprise Agreement (EEA) for the Muffin Break Rouse Hill employees. The company argued that certain provisions in the EEA were ambiguous and should be construed narrowly, while the employees contended that the provisions should be interpreted more broadly to provide them with greater job security and benefits. The Fair Work Commission was tasked with determining the correct interpretation of the EEA and resolving the disputes between the parties.

The legal issues the court had to decide were primarily about the interpretation of specific clauses in the EEA. These included the meaning of terms such as "casual employee," "full-time employee," and the conditions under which an employee could be required to work. The court had to determine whether certain practices by the company, such as scheduling and the allocation of hours, were in line with the EEA and whether the company had breached the agreement by not adhering to its terms. Additionally, the court needed to decide on the implications of these interpretations for the employees' rights and entitlements.

The Fair Work Commission examined the EEA in detail, considering the ordinary meaning of the terms used and the context in which they appeared. The court found that some of the company's practices were inconsistent with the EEA, particularly in relation to the scheduling of employee hours and the classification of employees. The Commission ruled that the EEA should be interpreted in a manner that favoured the employees, ensuring that they received the protections and benefits intended by the agreement. Consequently, the court ordered the company to adjust its practices to comply with the EEA and to provide appropriate compensation to affected employees.

The final orders of the Fair Work Commission mandated that A & M Mikhael Investments Pty Ltd bring its practices into compliance with the EEA, including the accurate classification of employees and adherence to scheduled hours. The company was also required to provide back pay and other entitlements to employees who had been adversely affected by the non-compliance. The decision underscored the importance of employers adhering to the terms of enterprise agreements and highlighted the Commission's role in ensuring fair work practices.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established