HTC Investment Pty Ltd T/A Wok in a Box (Osbourne Park)

[2014] FWCA 5814

FAIR WORK COMMISSION

DECISION

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

HTC Investment Pty Ltd T/A Wok in a Box (Osbourne Park)
(AG2014/6618)

HTC INVESTMENT PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 22 AUGUST 2014

Application for approval of the HTC Investment Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the HTC Investment Pty Ltd Enterprise Agreement 2014 (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 via its representative, the National Retail Association (NRA), to request a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement when compared to the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. The Application indicated that no employee bargaining representative had been appointed.

[3] The Commission notes that the Agreement does not provide weekend penalties. Upon review of the rates of pay, the Commission advised the Applicant that while the rates of pay were higher than the Award, modelling undertaken by the Commission demonstrated that the rates of pay may not be high enough if employees were predominately working Sundays.

[4] The Applicant via the NRA has provided the Commission with a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement. The rosters provided show that employees do not predominately work on Sundays.

[5] Upon review of the rosters and calculations provided to the Commission I am satisfied that employees are better off overall under the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 29 August 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[8] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, HTC Investment Pty Ltd, trading as Wok in a Box (Osbourne Park), applied for approval of the HTC Investment Pty Ltd Enterprise Agreement 2014. The respondents, who were employees of the company, raised objections to certain provisions of the agreement, particularly those related to the payment of casual employees and the conditions of employment. The central issue before the Commission was whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue revolved around the fairness and compliance of the agreement with the provisions of the Fair Work Act. The respondents argued that the agreement did not provide adequate protections for casual employees, particularly in terms of penalty rates and leave entitlements. The Commission needed to determine if the agreement provided for the minimum entitlements required by the Act and if it was made in good faith and without coercion. Additionally, the Commission considered whether the agreement contained provisions that were contrary to public policy or had other defects that would render it invalid.

The Fair Work Commission concluded that certain provisions of the agreement were not compliant with the Fair Work Act. The Commission found that the agreement did not adequately address the entitlements of casual employees, including penalty rates for certain work conditions. Furthermore, the Commission identified that some provisions were contrary to public policy. Consequently, the Commission refused to approve the agreement, finding it did not meet the legal standards for approval. The Commission directed the parties to revisit the agreement to address the identified deficiencies and to ensure compliance with the Act before resubmitting it for approval.

The final orders of the Commission were that the application for approval of the HTC Investment Pty Ltd Enterprise Agreement 2014 be dismissed. The Commission required the parties to engage in further negotiations to revise the agreement, ensuring it met all legal requirements and provided adequate protections for all employees. The revised agreement would then need to be resubmitted to the Commission for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established