E & H Porse Pty Ltd T/A Bonjour Patisserie

[2014] FWCA 2048

FAIR WORK COMMISSION

DECISION

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

E & H Porse Pty Ltd T/A Bonjour Patisserie
(AG2014/333)

E & H PORSE PTY LTD ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 27 MARCH 2014

Application for approval of the E & H Porse Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the E & H Porse 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] On 18 March 2014, the Commission sent correspondence to the Applicant via its legal representative in relation to the rates of pay for casual employees under the Agreement. In particular, the Commission noted that the casual employees rate of pay for Sundays was less than the Sunday rate of pay for a casual employee under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[3] The Applicant provided correspondence to the Commission on 24 March 2014. The Applicant provided a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement.

[4] The Applicant states that the Agreement provides for a flat hourly rate for all hours worked from Monday to Sunday. Further, the Applicant has advised that employees will not be required to work only on a Sunday in any week and therefore the additional compensation they receive from the higher flat rate for hours worked on other days of the week means employees working on a Sunday will be better off overall under the Agreement.

[5] Upon review of the Applicant’s correspondence, including the indicative rosters and calculations it has provided, I am satisfied that all employees, including casual employees are better off overall under the Agreement.

[6] 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.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 3 April 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of E & H Porse Pty Ltd trading as Bonjour Patisserie, the Fair Work Commission was tasked with reviewing an application for the approval of the Enterprise Agreement dated 2013. The primary dispute revolved around the terms and conditions outlined in the proposed agreement, with the applicant seeking formal endorsement of the agreement by the Commission. This case brought to light issues pertinent to the industrial relations framework, particularly regarding the balance of rights and obligations between employers and employees.

The legal issues before the Commission centred on the compliance of the Enterprise Agreement with the requirements set out in the Fair Work Act 2009. The Commission had to determine whether the agreement met the criteria for approval, including whether it provided for the fair and equitable treatment of employees, and if it adhered to the provisions that govern the scope and operation of such agreements. Furthermore, the Commission had to ensure that the agreement did not undermine the minimum standards of employment set by the Fair Work Act.

Upon examining the evidence and submissions presented by both parties, the Commission found that the Enterprise Agreement substantially complied with the legislative requirements. The agreement was deemed to provide adequate protections for employees, ensuring fair treatment and reasonable terms of employment. The Commission also concluded that the agreement did not contain any provisions that would adversely affect the minimum standards of employment. As such, the Commission approved the Enterprise Agreement, recognising it as a valid and enforceable instrument under the Fair Work Act.

The final orders of the Commission included the formal approval of the Enterprise Agreement dated 2013, thereby affirming its validity and enforceability between E & H Porse Pty Ltd and its employees. The decision underscores the importance of ensuring that enterprise agreements meet statutory requirements to protect the interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established