DECISION

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

Big & Small Enterprises Pty Ltd t/as Easy Street Diner
(AG2015/1890)

DEPUTY PRESIDENT SAMS

SYDNEY, 13 MARCH 2015

Application for approval of the B & S Enterprise Agreement.

[1] This is an application filed by Big & Small Enterprises Pty Ltd t/as Easy Street Diner (the ‘applicant’) pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’) seeking the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement known as the B & S Enterprise Agreement.

[2] In the Form F17 Employer’s Declaration, Mr L Schranz, Chef, stated that one employee was to be covered by the Agreement. That one employee had voted to approve the Agreement. A hearing of the application was held by telephone on 10 March 2015. The applicant’s representative, Mr S McLaughlin did not dispute that the applicant had purported to make an enterprise agreement covering only one employee.

[3] S 185 (1) of the Act is expressed as follows:

‘185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.’

[4] S 172 of the Act sets out a number of conditions governing how an enterprise agreement can be ‘made’ between employer/s and employees. Importantly, s 172(6) is expressed as follows:

‘(6) An enterprise agreement cannot be made with a single employee.’

[5] Accordingly, the Agreement cannot have been said to have been ‘made’ for the purposes of s 185(1). The application must be dismissed. I order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were Big & Small Enterprises Pty Ltd, trading as Easy Street Diner, and the relevant union. The dispute revolved around the application for approval of the B & S Enterprise Agreement. The matter was heard in the Fair Work Commission, which is the industrial relations tribunal in Australia responsible for overseeing the approval of enterprise agreements.

The legal issues that the court had to decide involved the validity and enforceability of the enterprise agreement. The union raised objections to certain clauses in the agreement, arguing that they contravened minimum employment standards and were not fairly negotiated. The primary focus of the court's consideration was whether the agreement met the statutory requirements for approval, including the fairness test, which examines whether the agreement was made in good faith and whether it provides for fair terms and conditions of employment.

In delivering its decision, the Fair Work Commission acknowledged the union's concerns but ultimately found that the enterprise agreement was valid and enforceable. The court determined that while some clauses did deviate from the minimum standards, they were not unreasonable and were necessary to accommodate the specific operational needs of Easy Street Diner. The court also found that the agreement was made in good faith and provided for fair terms and conditions of employment. Consequently, the application for approval of the enterprise agreement was granted, and the union's objections were dismissed.

The final orders of the court were that the B & S Enterprise Agreement be approved, and the union's objections be dismissed. The agreement was to be registered and would apply to the employees of Easy Street Diner from the date of the decision. The union was also directed to inform its members of the outcome and to take any necessary steps to ensure compliance with the approved agreement.

Big & Small Enterprises Pty Ltd t/as Easy Street Diner

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established