Bunk (Qld) Pty Ltd T/A Bunk Backpackers And Birdee Num Num's

[2024] FWCA 702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bunk (Qld) Pty Ltd T/A Bunk Backpackers And Birdee Num Num's

(AG2024/70)

BUNK BACKPACKERS - SINGLE ENTERPRISE AGREEMENT 2023

Hospitality industry
COMMISSIONER CONNOLLY	MELBOURNE, 22 FEBRUARY 2024

Application for approval of the Bunk Backpackers - Single Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bunk Backpackers - Single Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bunk (Qld) Pty Ltd T/A Bunk Backpackers And Birdee Num Num's (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 25 January 2024

The notification time for the Agreement under s.173(2) was 13 November 2023 and the Agreement was made on 13 December 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 31 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

It is noted that the pre-6 June 2023 version of the NERR appears to have been provided, however, in light of the considerations in s.188(5), I am satisfied that employees were not disadvantaged in this regard.

There is one National Employment Standards (NES) issue that requires comment:

· Compassionate leave: The entitlement to compassionate leave provided by clause 5.2.3.1 of the agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s. 105 (1) (b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s. 105 (1) (c) of the Act.

Clause 1.4.2 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

The Applicant has provided written undertakings, dated 19 February 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 November 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The case involved Bunk (Qld) Pty Ltd, trading as Bunk Backpackers, and Birdee Num Num's, with the dispute centred around the approval of the Bunk Backpackers - Single Enterprise Agreement 2023. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the requirements for a single enterprise agreement, including whether it had been fairly and independently negotiated and whether it included appropriate minimum terms and conditions for employees. The Commission also had to consider whether the agreement complied with the "better-off-overall test" which ensures that employees are not worse off under the new agreement than they would be under the previous agreement or applicable law.

The Fair Work Commission found that the agreement was fairly and independently negotiated and contained appropriate minimum terms and conditions. The Commission also found that the agreement met the better-off-overall test, as employees were not worse off under the new agreement. The Commission approved the agreement, noting that it provided for a fair and reasonable workplace environment that balanced the needs of both the employer and the employees.

Following the Commission's approval, the Bunk Backpackers - Single Enterprise Agreement 2023 was authorised and will now form the basis of the employment conditions for the relevant employees. This decision provides clarity and certainty for both the employer and employees regarding their rights and obligations under the new agreement.

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