Caneramble Pty Ltd T/A Subway, Subway Bridge Street Pty Ltd T/A Subway

[2024] FWCA 1235

[2024] FWCA 1235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Caneramble Pty Ltd T/A Subway, Subway Bridge Street Pty Ltd T/A Subway

(AG2023/5167)

SUBWAY BRIDGE STREET PTY LTD AND CANERAMBLE PTY LTD ENTERPRISE AGREEMENT 2023

Fast food industry
COMMISSIONER TRAN	MELBOURNE, 5 APRIL 2024

Application for approval of the Subway Bridge Street Pty Ltd and Caneramble Pty Ltd Enterprise Agreement 2023

1. Subway Bridge Street Pty Ltd and Caneramble Pty Ltd have applied for approval of an enterprise agreement known as the Subway Bridge Street Pty Ltd and Caneramble Pty Ltd Enterprise Agreement 2023 under s 185 of the Fair Work Act 2009 (the Act). The Applicants are franchisees of the Subway sandwich chain and operates stores in Queensland. 

1. The Agreement is a single enterprise agreement. 

1. On 19 December 2023, the Shop, Distributive and Allied Employees Association (SDA) corresponded with the Commission seeking to be heard in relation to this matter. Around the same time, the SDA lodged appeals under s 604 of the Act against two decisions of the Commission. Those decisions were: 

·     Re Allen Family Pty Ltd Enterprise Agreement 2023 [2023] FWCA 3996

·     Re RK & NK Pty Ltd Enterprise Agreement 2023 [2023] FWCA 4357

1. The employers in both the above appeals were also Subway franchisees, and the Agreement is near identical to the agreements in the above appeals. 

1. This agreement was allocated to me along with another agreement where the applicants also operated Subway franchises, and which was near identical to the agreement in Re Allen Family – Re Shree Rudra Pty Ltd ATF RD Trust Enterprise Agreement 2023. I was also dealing with the application for approval of the B.G. & D.M. Tonge Pty Ltd Enterprise Agreement 2023, which was substantially similar to the agreements in re Allen Family and this agreement. 

1. I determined to deal with all 3 agreements together but will publish separate decisions relating to each. 

1. The Full Bench published their decision in Re Allen Family Pty Ltd Enterprise Agreement 2023 on 6 February 2024.[1] I issued directions and listed this Agreement, together with the two similar agreements, for hearing on 19 March 2024. 

1. The Applicant did not oppose the SDA’s intervention and I formed the view that allowing the SDA’s intervention would assist me to inform myself under s 590. 

1. The SDA filed an affidavit detailing its concerns about whether the Agreement passed the Better Off Overall Test. The concerns related to:

·     the Agreement did not contain evening penalty rates; 

·     the Agreement did not contain additional payments for annual leave loading; 

·     the Agreement did not contain additional payments for various allowances; 

·     clauses about part-time employment; 

·     excess annual leave; 

·     the Agreement did not contain an Accident pay clause; 

·     payments and deductions from wages on termination of employment; and 

·     representation during dispute resolution. 

1. The Applicant offered undertakings in relation to the above matters. The SDA indicated that the undertakings addressed their concerns. 

1. As I had concerns that the Agreement did not meet the requirement of passing the better off overall test as provided for in ss 186(2) and 193 of the Act, 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.  

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 20 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 for any reason for which your employer cannot reasonably be held responsible; 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 with the employer cannot reasonably be held responsible. 

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 s 54 of the Act, will operate from 12 April 2024.  

1. In accordance with clause 3.2 of the Agreement, the nominal expiry date of the Agreement is 5 April 2028, being the fourth anniversary of the approval date. 

COMMISSIONER

[1] SDA v Allen Family Pty Ltd[2024] FWCFB 48.

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