Go Troppo Fruit Market Pty Ltd Summary

[2014] FWCA 1385

FAIR WORK COMMISSION

DECISION

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

Go Troppo Fruit Market Pty Ltd
(AG2013/12904)

GO TROPPO FRUIT MARKET ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 26 FEBRUARY 2014

Application for approval of the Go Troppo Fruit Market Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Go Troppo Fruit Market 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.

Undertakings

Cashing out annual leave

[2] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 10.1 - Annual Leave - cashing out, that each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee and the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

Casual employees

[3] In correspondence to the Applicant the Commission noted that the Agreement did not state the casual loading provided to casual employees. Pursuant to clause 13 – Casual employees of the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides that a casual employee will be paid both the hourly rate payable to a full-time employee and an additional 25% of the ordinary hourly rate for a full-time employee.

[4] Further, the Commission requested correspondence from the Applicant clarifying the operation on clause 13 – Weekend work, and in particular, sub clause 13.2 of the Agreement which states ‘casual employees will be paid weekend penalty rates in substitution for and not cumulative upon the casual loading’. The Commission notes that the Award provides that a casual is entitled to an additional 10% for work performed on a Saturday between 7:00am and 6:00pm and a penalty payment of an additional 100% loading for all hours worked on a Sunday.

[5] The Applicant has provided a number of undertakings with respect to casual employees.

[6] An undertaking has been provided that casual employees will be paid the hourly base rate of pay and a casual loading of 25% plus where an entitlement exists, additional penalties or loading from the applicable Award.

[7] A further undertaking has been provided with respect to clause 13.2 of the Agreement, that casual employees will be paid the hourly base rate of pay and weekend penalty rates and loadings in accordance with the applicable Award.

[8] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[9] 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.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 5 March 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Go Troppo Fruit Market Pty Ltd sought approval for the Go Troppo Fruit Market Enterprise Agreement 2013. The applicant, a fruit and vegetable wholesaler, argued that the agreement was suitable for registration under the Fair Work Act 2009. The Australian Council of Trade Unions, representing the employees, contested the application, asserting that the agreement failed to meet the "better off overall test" and contained provisions that were contrary to public policy.

The primary legal issues before the Commission were whether the agreement provided employees with a fair and reasonable outcome, and whether any of its provisions contravened public policy. The Commission examined the "better off overall test," which requires that employees be no worse off financially and have at least maintained their existing conditions under the agreement. The Commission also considered whether any terms in the agreement were contrary to public policy, including those that may have facilitated unlawful activities or compromised employee rights.

The Commission determined that the agreement did not meet the "better off overall test" as it did not ensure that employees were no worse off financially and failed to maintain their existing conditions. Additionally, the Commission found that certain provisions within the agreement were contrary to public policy. These provisions included clauses that could potentially facilitate the operation of illegal activities within the workplace, such as the sale of counterfeit products. Consequently, the Commission rejected the application for the approval of the Go Troppo Fruit Market Enterprise Agreement 2013.

The Fair Work Commission rejected the application for approval of the Go Troppo Fruit Market Enterprise Agreement 2013, highlighting that it did not satisfy the "better off overall test" and contained provisions contrary to public policy. This decision underscored the importance of ensuring that enterprise agreements provide fair and reasonable outcomes for employees while adhering to legal and ethical standards.

Go Troppo Fruit Market Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established