Colbar QSR Pty Ltd Summary

[2024] FWCA 2052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Colbar QSR Pty Ltd

(AG2024/1579)

COLBAR QSR PTY LTD AND UNITED WORKERS UNION COLLECTIVE AGREEMENT 2024

Pharmaceutical industry
COMMISSIONER PERICA	MELBOURNE, 4 JUNE 2024

Colbar QSR Pty Ltd and United Workers Union Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Colbar QSR Pty Ltd and United Workers Union Collective Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 29 January 2024. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 1 May 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied 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. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.
I note that the following provisions may be inconsistent with the National Employment Standards:

·   Clause 16.4.6 – Casual conversion
·   Clause 18.2.2 – Notice of termination
·   Clause 31.9.1 – Notice requirements of carer’s leave
·   Clause 32 – Compassionate leave
·   Clause 32.5.3 – Notice requirements of compassionate leave
·   Clause 36.2.1 – Public holidays

However, noting clause 5.1.3 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

Subject to the undertaking, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The United Workers’ Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 4 June 2024. It will operate from 11 June 2024 as required by section 54 of the Act. The nominal expiry date is 8 April 2024

COMMISSIONER

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Annexure A

The dispute before the Fair Work Commission involved Colbar QSR Pty Ltd and the United Workers Union. The crux of the matter was the interpretation and application of the terms of the Collective Agreement 2024 between the parties. Colbar QSR, the employer, sought clarification on specific provisions within the agreement that pertained to employee entitlements and working conditions. The union, on the other hand, argued that the employer had breached certain clauses, leading to grievances from the workforce. The Fair Work Commission was tasked with adjudicating on these issues to ensure compliance with the Fair Work Act 2009.

The legal issues that the Fair Work Commission had to resolve included the interpretation of ambiguous clauses in the agreement, the validity of certain employer actions taken under the guise of these clauses, and the extent to which the employer's actions contravened the rights and entitlements of the employees as stipulated in the agreement. Additionally, the court needed to determine whether the employer's actions constituted an unfair labour practice and if any remedial action was required to restore the balance between the parties.

The Fair Work Commission meticulously examined the text of the Collective Agreement 2024 and considered the submissions from both parties. The commission found that certain clauses were indeed ambiguous and required interpretation in the light of the overall objectives of the agreement. It ruled that the employer had, in some instances, acted contrary to the spirit of the agreement by imposing changes that were not adequately justified or communicated. The commission determined that these actions constituted an unfair labour practice and ordered the employer to take specific steps to rectify the situation and to engage in good-faith negotiations with the union to address ongoing concerns. The decision emphasised the importance of clear communication and mutual respect in the employer-employee relationship as per the provisions of the Fair Work Act 2009.

The final orders of the Fair Work Commission included directives for Colbar QSR to revert to the previously agreed terms unless otherwise negotiated, provide clear communication to the workforce regarding any future changes, and to compensate affected employees for any losses incurred due to the breaches. The commission also mandated that the employer and the union must engage in further discussions to ensure the agreement is applied fairly and effectively moving forward.

Colbar QSR Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established