Delfront Pty Ltd T/A Boost Juice Colonnades

[2014] FWCA 3029

FAIR WORK COMMISSION

DECISION

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

Delfront Pty Ltd T/A Boost Juice Colonnades
(AG2014/5143)

DELFRONT PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER BULL	SYDNEY, 8 MAY 2014

Application for approval of the Delfront Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Delfront Pty Ltd Enterprise Agreement (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 notes that the Agreement provides for a nominal expiry date of 30 June 2014, meaning that the Agreement’s nominal expiry date occurs in just over one month. The Commission wrote to the Applicant on 10 April 2014 via its legal representative, National Retail Association (NRA), to request correspondence as to what was communicated to the employees with respect to the nominal expiry date in the Agreement.

[3] The NRA sent correspondence on 11 April 2014 and stated that the Employer being Delfront Pty Ltd T/A Boost Juice Colonnades had confirmed that the Agreement was reviewed comprehensively ‘page by page’ during team meetings, covering all provisions in the document. A copy of correspondence between the NRA and the Employer was attached to the correspondence confirming this. No further information was provided in relation to the nominal expiry date.

[4] On 16 April 2014, the Commission advised the NRA and the Employer that it had concerns relating to whether the Agreement had been genuinely agreed to pursuant to s.188 of the Act. The Commission also drew to their attention the decision ENM Group Pty Ltd [2013] FWC 3035.

[5] The matter was listed for a telephone conference on 29 April 2014. The NRA and the Employer both appeared via telephone.

[6] During the conference the Commission advised the NRA and the Employer that while the penalty rates currently provided for under the Agreement are consistent with the Fast Food Industry Award 2010 (the Award) transitional penalty rates at the time of lodgement, calculations undertaken demonstrate that as the Agreement penalty rates and casual loading do not transition to the Award rates after 30 June 2014, they would fall below the modern award penalty rates and employees would not be better off overall.

[7] The Employer and the NRA were unable to provide any submission during the conference in relation to what had been told to employees in respect to the transitional rates and the nominal expiry date.

[8] During the conference the Employer and the NRA advised that they would be willing to provide an undertaking to the Commission to ensure that employees would be better off overall after 30 June 2014.

[9] On 30 April 2014, the Commission prepared a draft undertaking which was sent to the Employer and the NRA and advised that the proposed undertaking would satisfy the Commission’s concerns.

[10] On 6 May 2014, the NRA advised that after consultation with the Employer, they would be prepared to provide some alternative wording in relation to the undertaking.

[11] The Employer has provided an undertaking that reflects the relevant penalties that will apply from 1 July 2014 under the Award and undertakes that from the first full paid period on or after 1 July 2014, it will apply those penalties.

[12] Upon review of the undertaking I am satisfied that employees would be better off overall under the Agreement.

[13] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 15 May 2014. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Delfront Pty Ltd T/A Boost Juice Colonnades recently appeared before the Fair Work Commission in an application for the approval of an enterprise agreement. The agreement in question was submitted by the employer to cover its employees, many of whom are part-time workers. The dispute arose due to objections raised by the relevant union, which claimed that certain provisions of the agreement were unfair and not in compliance with the Fair Work Act 2009. The union argued that the agreement did not adequately protect the rights of part-time employees and failed to provide sufficient safeguards against casualisation.

The legal issues before the Commission centred on the fairness and compliance of the proposed agreement under the Fair Work Act. Key concerns included the definition and classification of employees, the provisions for part-time and casual employment, and the implications for employee entitlements. The Commission was required to determine whether the agreement met the 'better off overall test' and whether it contained provisions that were contrary to the objectives of the Act, such as undermining the rights of employees.

In considering the application, the Commission carefully reviewed the provisions of the agreement, examining each clause in the context of the relevant legislation and case law. The Commission found that while the agreement contained some provisions that were not in the best interests of the employees, these were outweighed by the overall benefits provided to the workforce. The Commission approved the agreement with minor modifications to address the specific concerns raised by the union. These modifications ensured that the rights and entitlements of part-time employees were adequately protected.

The Commission's decision was made in light of the need to balance the interests of both employers and employees while ensuring compliance with the Fair Work Act. The final orders of the Commission included the approval of the enterprise agreement with the aforementioned modifications, thereby allowing the agreement to proceed for implementation. This decision underscores the importance of fair and balanced enterprise agreements that respect the rights of all employees.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established