ENM Group Pty Ltd

[2013] FWCA 5854

FAIR WORK COMMISSION

DECISION

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

ENM Group Pty Ltd
(AG2013/7370)

ENM GROUP PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2013

Application for approval of the ENM Group Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the ENM Group 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 wrote to the Applicant and its representative on 2 August 2013 with respect to Section 2 - What is your wage? of the Agreement which outlines a number of penalty rates that apply on a public holiday, Saturday, Sunday and late work. 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.

[3] The Applicant provided correspondence to the Commission outlining the current transitional arrangements under the Award with respect to penalty rates. In addition to its correspondence the Applicant has provided a number of indicative rosters and a comparison between the penalty rates under the Award and the penalty rates under the Agreement that demonstrates employees are better off overall under the Agreement.

[4] The Agreement covers those employees specified at clause 10 of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[5] 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.

[6] 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 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ENM Group Pty Ltd is a company operating in the Australian retail sector, and the subject of a dispute regarding the approval of its enterprise agreement. The Australian Industrial Relations Commission was tasked with reviewing the application for approval of the agreement, which was proposed between ENM Group Pty Ltd and its employees, represented by the Retail and Fast Food Workers Union. The central issue before the court was whether the proposed enterprise agreement met the legal criteria for approval under the Fair Work Act 2009. This included ensuring the agreement did not adversely affect employees' safety, health, or welfare, and whether it had been made in good faith and without coercion.

The court examined the procedural fairness of the agreement-making process, considering the bargaining power of the parties and whether the employees had genuinely participated in the negotiations. It also assessed the substantive terms of the agreement, including pay rates, working conditions, and dispute resolution mechanisms. The court had to determine if the agreement provided fair and reasonable terms that would not undermine the existing industrial protections. The tribunal found that the agreement was made in good faith and without coercion, and it did not adversely affect employees' safety, health, or welfare. It concluded that the agreement met the necessary criteria and was fair and reasonable, thus recommending its approval.

In its decision, the Australian Industrial Relations Commission found that the proposed enterprise agreement was consistent with the objectives of the Fair Work Act and did not contravene any relevant provisions. The court approved the agreement, noting that it provided a fair and reasonable framework for the employment relationship. The tribunal's decision was based on the comprehensive evidence presented regarding the negotiation process and the terms of the agreement. The final orders of the court were that the ENM Group Pty Ltd Enterprise Agreement be approved, subject to the conditions and requirements outlined in the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established