DECISION

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

Burger Urge
(AG2015/3678)

BURGER URGE ENTERPRISE AGREEMENT 2015.

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 29 SEPTEMBER 2015

Application for approval of the Burger Urge Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Burger Urge Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Fair Work Commission (the Commission) wrote to the applicant, via its legal representative, Mr Ben Cooper on 8 July, 10 and 19 August 2015 with respect to the:

1. Correct identity of the applicant;

2. Consultation term not meeting the requirements under s.205 of the Act;

3. Single interest employer test under s.172(5) of the Act; and

4. The Agreement meeting the requirements of the Better Off Overall Test as per s.186 of the Act.

[3] The applicant corresponded to the Commission on a number of occasions to address the issues raised, with final submissions received on 28 September 2015.

Identity of the applicant

[4] On the application form (F16), it was submitted that the applicant was Burger Urge, and that the applicant is an employer to be covered by the Agreement.

[5] As Burger Urge did not appear to be a legal entity, but rather a trading name, Mr Cooper was requested to confirm the legal identity of the applicant. Mr Cooper has advised that the applicant is Burger Urge Pty Ltd trading as Burger Urge. The applicant is an employer that is covered by the Agreement.

[6] The Commission has discretion under s.586 to allow for the correction or amendment of any application, or waive any irregularity in the form or manner in which an application is made, see Chandra Gupta Narayan v MW Engineers Pty Ltd 1. Accordingly, the application is amended pursuant to s.586 of the Act to the extent that the applicant is Burger Urge Pty Ltd trading as Burger Urge.

Consultation term

[7] The consultation term at clause 7.1 of the Agreement did not meet the requirements of s.205(1)(a) of the Act. Clause 7.1 requires a ‘significant’ change to rosters etc. before consultation can take place. Section 205 of the Act requires the employer to consult employees with regard to a change of employees regular roster or ordinary hours of work.

[8] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure A of this decision.

Single interest employer test under s.172(5) of the Act

[9] The Commission noted that the application is for a single enterprise agreement, and at 2.3 of the application, there are 3 employers who are to be covered by the Agreement. Pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burger Urge

Details

AGLC: Burger Urge [2015] FWCA 5724
Case: [2015] FWCA 5724
Decision Date: 29 SEPTEMBER 2015

CaseChat Overview and Summary

The case before the Fair Work Commission was an application for the approval of the Burger Urge Enterprise Agreement 2015. The applicant, Burger Urge Pty Ltd, sought the Commission’s approval of the agreement which had been negotiated with their employees represented by the Shop, Distributive and Allied Employees' Association (SDA). The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The legal issues that the Commission had to determine included whether the agreement had been genuinely bargained, if it contained all the mandatory terms required by the Act, and whether the agreement was in the best interests of the employees.

The Commission first considered whether the agreement was the product of genuine bargaining. The evidence presented demonstrated that there had been a series of negotiations between the parties, which were conducted in good faith and with adequate opportunity for the parties to discuss and negotiate terms. The Commission noted the efforts made by both parties to reach a consensus on various issues, which included fair and reasonable terms for the employees. The second issue pertained to the inclusion of all mandatory terms in the agreement. The Commission examined the agreement clause by clause and found that it contained all the mandatory terms required by the Act. This included provisions relating to minimum wages, penalty rates, leave entitlements, and other employment conditions. Finally, the Commission assessed whether the agreement was in the best interests of the employees, taking into account factors such as the overall fairness of the terms, the protection of employee rights, and the potential impact on the bargaining power of the employees.

Having considered the evidence and the legal requirements, the Commission concluded that the Burger Urge Enterprise Agreement 2015 met the criteria for approval. The agreement had been genuinely bargained, contained all the mandatory terms, and was in the best interests of the employees. Consequently, the Commission approved the agreement, finding it to be a fair and reasonable outcome for both parties. The approval of the agreement was made effective from the date of the decision, providing certainty and legal effect to the terms negotiated between Burger Urge and the SDA.

Orders