Declia Pty Ltd T/A Subway Figtree & Unanderra

[2010] FWA 1799

FAIR WORK AUSTRALIA

DECISION

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

Declia Pty Ltd T/A Subway Figtree & Unanderra
(AG2009/20309)
SF & JR Manoel Pty Ltd T/A Dreamy Donuts
(AG2009/20352)

COMMISSIONER FOGGO

MELBOURNE, 5 MARCH 2010

Declia Pty Ltd Employee Enterprise Agreement and SF & JR Manoel Pty Ltd Employee Enterprise Agreement - applications refused.

[1] These are two agreements lodged by the same bargaining representative. The agreements arise from a common template and the agreements vary slightly due to the relevant awards or notional agreements for the purposes of the no-disadvantage test being different.

[2] The agreements also follow the same pattern as those agreements which have previously been considered by the tribunal. I refer specifically to the decision of Commissioner Whelan 1.

[3] The two applications before the Tribunal contain provisions which, for the reasons expressed in the above decisions, do not meet the requirements of the Fair Work Act 2009 (the Act). These provisions include but are not necessarily limited to the fact that a flat rate of pay allegedly incorporating all public holidays, annual leave loading, allowances and all rates arising from weekend, overtime and late night penalties is paid for all work. On the basis of the Form F17 declaration and the explanations advanced in support of this single incorporated rate, I am not satisfied that it would provide appropriate compensation for hours to be worked.

[4] The same applies to the provision of a flat rate of pay which arises from the ‘preferred hours’ clause. There is also an issue with the lack of certainty which arises from the manner in which the rosters are drawn up and distributed and it is insufficient to state in an enterprise agreement that ‘typically’ some action such as drawing up a roster a week in advance will occur. The same can be said regarding payment of wages when employees should know what the arrangement is and whether payment occurs weekly or fortnightly. This clause may be no more than loosely worded but it is essential that once a pay period is determined it remain in place.

[5] There is also a differentiation in the manner in which public holidays are recompensed. A ‘holiday’ in lieu of Christmas Day, Boxing Day and Australia Day occurs but not against any of the other public holidays if they are worked.

[6] I rely on the reasons on the decision of Commissioners Whelan in addition to the comments above I am unable to approve the two applications in this matter. In my view they do not meet the provisions of the Act and they are therefore dismissed.

COMMISSIONER

1 Bendy Q Ltd T/A Jamaica Blue Knox City and others [2009] FWA 1869

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CaseChat Overview and Summary

Declia Pty Ltd, trading as Subway Figtree and Unanderra, sought to have two Employee Enterprise Agreements (EEA) approved by the Fair Work Commission. The respondent, SF & JR Manoel Pty Ltd, opposed the application. The dispute was heard by the Full Bench of the Fair Work Commission. The central issue before the court was whether the agreements met the legal criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreements complied with the requirements for good faith bargaining, were made without coercion, and adequately covered the necessary terms and conditions of employment.

The Full Bench found that the agreements did not meet the necessary standards for approval. The court emphasised that the agreements failed to adequately address several key terms and conditions of employment, and there were significant concerns regarding the process of bargaining. The court highlighted that the process lacked good faith and was not conducted in a manner that ensured the agreements reflected a genuine effort to reach a fair and reasonable outcome. Consequently, the Full Bench refused to approve the agreements.

In reaching its decision, the court underscored the importance of ensuring that EEAs are the result of genuine and effective bargaining processes. The Full Bench noted that the agreements did not reflect the necessary standards of fairness and good faith required by the Act. The court's refusal to approve the agreements was based on the failure to meet these fundamental criteria. The Full Bench's decision was clear and final, with no orders made to approve the agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established