Burger Urge Pty Ltd T/A Burger Urge

[2024] FWCA 1387

[2024] FWCA 1387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Enterprise agreement

Burger Urge Pty Ltd T/A Burger Urge

(AG2024/752)

BURGER URGE – SINGLE ENTERPRISE AGREEMENT 2024

Fast food industry
COMMISSIONER TRAN	MELBOURNE, 17 APRIL 2024

Application for approval of the Burger Urge - Single Enterprise Agreement 2024

1. Burger Urge Pty Ltd has applied for approval an enterprise agreement known as the Burger Urge Single Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009 (the Act).

1. The Agreement is a single enterprise agreement.

1. After reviewing the Agreement, the application and supporting documents, and the Commission’s Agreements Teams checklist, I raised various concerns with the Employer by email on 26 March 2024. I also held a mention on 12 April 2024 in relation to my concerns.

1. My concerns related to:

   -     Concerns about the Notice of Employee Representational Rights;

   -     Genuine Agreement Concerns other than the Notice;

   -     Concerns about whether the Agreement would pass the Better Off Overall Test;

   -     Concerns about the interaction of certain clauses of the Agreement with the National Employment Standards; and

   -     Concerns about certain clauses of the Agreement that may be inconsistent with the Act.

2. The Employer responded to my concerns on 28 March 2024, 4 April 2024 and 15 April 2024.

1. I was satisfied with the Employer’s response regarding my concerns about the Notice and my genuine agreement concerns.

1. In relation to my concerns about whether the Agreement would pass the better off overall test as provided for in ss 186(2) and 193 of the Act, the Employer offered undertakings to address those concerns. I formed the view that amendments to the Agreement would be necessary to address my concerns. I therefore specified that the substance of the provided undertakings would be amendments to the Agreement under s 191A of the Act.

1. I sought the Applicant’s views, who indicated they agreed by providing marked up and clean versions of the Agreement with the specified amendments that incorporated the undertakings provided.

1. I also sought employees’ views, and employees were provided with an opportunity to give me any views prior to this decision. I did not receive any objections to the specified amendments.

1. I note that Clause 5.1.4 of the Agreement may be inconsistent with s 88(2) of the National Employment Standards. However, the Agreement contains an effective NES precedence clause at Clause 1.6 and I am therefore satisfied that that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I note that Clause 6.5.1 of the Agreement is inconsistent with s 524 of the Act as it allows for the Employer to stand down employees where the employee cannot be usefully employed ‘in circumstances beyond [the Employer’s] control’, whereas s 524 provides for specific reasons and at s 524(1)(c) refers to the reason of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

1. I further note that Clause 6.4 Deductions provides for potential deductions from wages that may not be a permitted deduction in accordance with s 324, and may be of no effect to the extent that it offends s 326 of the Act.

1. Subject to the matters above, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s54 of the Act, will operate from 24 April 2024.

1. In accordance with clause 1.3.2 of the Agreement, the nominal expiry date of the Agreement is 17 April 2024, being four years from the date of approval of the Agreement.

COMMISSIONER

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