CHBurgerbiz Pty Ltd Summary

[2013] FWCA 5862

FAIR WORK COMMISSION

DECISION

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

CHBurgerbiz Pty Ltd
(AG2013/1682)

CHBURGERBIZ PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2013

Application for approval of the CHBurgerbiz Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CHBurgerbiz Pty Ltd Enterprise Agreement 2013 (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 Commission wrote to the Applicant and its representative on 11 July 2013 with respect to clause 14 - Public Holidays, and in particular, sub clause 14.3 and 14.4 of the Agreement which provides a penalty payment to employees working on a public holiday. The penalty rates provided for in the Agreement appeared to be less than the penalty rates provided for in the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

Undertakings

Penalty rates

[3] The Applicant provided correspondence to the Commission outlining the current transitional arrangements under the Award with respect to penalty payments on public holidays. An undertaking has been provided by the Applicant that permanent employees performing work on a public holiday up until 30 June 2014 will be paid 203% of their permanent base rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, permanent employees will be paid 230% of their base rate of pay for those hours worked.

Casuals

[4] A further undertaking has been provided by the Applicant with respect to casual employees working on a public holiday. The undertaking states that casual employees performing work on a public holiday up until 30 June 2014 will be paid 200% of their casual rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, casual employees will be paid 210% of their causal rate for those hours worked.

[5] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[6] In its correspondence to the Applicant the Commission requested a breakdown of indicative rosters and calculations with respect to each classification under the Agreement as the Commission notes that the base rates of pay include a laundry allowance, annual leave loading and other penalties for evening and weekend work.

[7] A number of indicative rosters have been provided to the Commission to demonstrate that employees paid under Schedule A of the Agreement are better off overall.

[8] The Agreement covers those employees classified as a Level 1 and Level 2 employee. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[9] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 26 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In the matter of CHBurgerbiz Pty Ltd, the applicant, the Fair Work Commission was tasked with determining whether to approve an enterprise agreement proposed by the applicant. The agreement, titled the CHBurgerbiz Pty Ltd Enterprise Agreement 2013, was submitted for consideration by the Fair Work Commission as part of the formal process for approving such agreements under the Fair Work Act 2009. The primary dispute centred on the fairness and compliance of the proposed agreement with the legislative requirements.

The legal issues before the Fair Work Commission were multifaceted, focusing on whether the agreement met the criteria for approval as set out in the Fair Work Act. This included ensuring that the agreement provided for terms and conditions of employment that were procedurally and substantively fair. Furthermore, the Commission needed to assess whether the agreement appropriately balanced the interests of both employees and the employer, and whether it adhered to the requirements of the Fair Work Act, including the ‘better off overall test’. The Commission also had to verify that the agreement had been genuinely negotiated and that the necessary procedural fairness had been observed in its formation.

Upon examining the evidence and submissions, the Fair Work Commission concluded that the CHBurgerbiz Pty Ltd Enterprise Agreement 2013 was procedurally fair and met the requirements for approval. The Commission found that the agreement had been genuinely negotiated between the parties, and that it provided for fair and reasonable terms and conditions of employment. The Commission determined that employees would be better off overall under the new agreement, thereby satisfying the statutory criteria for approval. Consequently, the Fair Work Commission approved the agreement.

The Fair Work Commission's decision to approve the CHBurgerbiz Pty Ltd Enterprise Agreement 2013 was formally recorded and communicated to the parties involved. The approval signifies the legal validity of the agreement, which will now govern the employment terms and conditions of the employees covered by the agreement.

CHBurgerbiz Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established