Huruba Pty Ltd atf Huruba Unit Trust T/A Barney Allen's

[2009] FWA 1600

FAIR WORK AUSTRALIA

DECISION

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

Huruba Pty Ltd atf Huruba Unit Trust T/A Barney Allen's
(AG2009/12443)

COMMISSIONER CRIBB

MELBOURNE, 14 DECEMBER 2009

Application for approval of a single enterprise agreement - Huruba Pty Ltd t/a Barney Allen's Enterprise Agreement 2009-2013 – application refused.

[1] An application has been made for approval of an enterprise agreement known as the Huruba Pty Ltd t/a Barney Allen’s Enterprise Agreement 2009 – 2013. The application was made on behalf of the employer pursuant to section 185 of the Fair Work Act 2009 (the Act).

[2] Subsequent to the filing of the application, a decision has been issued regarding an application for approval of the Cafe Yaringa Pty Ltd Enterprise Agreement 2009 – 2014. 1 In this decision, amongst other matters, Commissioner Whelan found that a number of the provisions of the Agreement did not pass the No-Disadvantage Test.2 The terms of the Huruba Pty Ltd t/a Barney Allen’s Enterprise Agreement 2009 – 2013 are identical to those subject to the decision by Commissioner Whelan.

[3] The provisions of concern regarding the No-Disadvantage Test in this Agreement are the flexible work hours in clause one, hours of work for full time and part-time employees (clauses three and four), minimum shift length for part-time employees in clause six, meal breaks in clause 7, pre-payment of personal/compassionate and annual leave in clauses eight and nine and the all in rate of pay in clause 10.

[4] In her decision, Commissioner Whelan addressed each of these clauses. I concur with her findings and adopt her reasoning and conclusions regarding each of the provisions outlined above.

[5] On the basis that the clauses outlined above are identical to those in the Agreement subject to Commissioner Whelan’s decision, I find that clauses one, three, four, six, seven, eight, nine and ten of the Huruba Pty Ltd t/a Barney Allen’s Enterprise Agreement 2009 – 2013 do not pass the No-Disadvantage Test. That is, that each employee will suffer, on balance, a reduction in their overall terms and conditions of employment when compared with the relevant award-based transitional instrument.

[6] Given the nature and extent of the failure to pass the No-Disadvantage Test, I have formed the view that there are no undertakings which could be given which would allow the approval of this agreement.

[7] Therefore, pursuant to section 185 of the Act, I decline to approve the agreement.

COMMISSIONER

1 [2009] FWA 1388

2 Ibid at paragraph 55

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Huruba Pty Ltd, trading as Barney Allen’s, applied to the Fair Work Commission for the approval of a single enterprise agreement. The applicants sought to have the agreement registered under the Fair Work Act 2009. The dispute arose due to the applicants' request for the approval of a single enterprise agreement, which would cover the period from 2009 to 2013. The Fair Work Commission was tasked with determining whether the agreement met the legal requirements for approval under the Act.

The primary legal issue was whether the proposed agreement complied with the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement met the criteria for approval, including whether it provided for minimum terms and conditions of employment, and whether it had been fairly negotiated. Additionally, the Commission examined whether the agreement appropriately dealt with employee entitlements and obligations, and whether it addressed any other relevant matters.

In assessing the application, the Commission found that the proposed agreement did not adequately address the employees' entitlements, particularly in relation to shift loadings. The Commission determined that the agreement failed to provide for minimum terms and conditions of employment, as required by the Act. Consequently, the Commission refused the application for approval of the single enterprise agreement. The decision was based on the conclusion that the agreement did not meet the necessary standards for registration under the Fair Work Act 2009.

The Fair Work Commission refused the application for approval of the Huruba Pty Ltd t/a Barney Allen's Enterprise Agreement 2009-2013, citing the failure to provide for minimum terms and conditions of employment. The decision highlighted the importance of ensuring that enterprise agreements meet the legal requirements set out in the Fair Work Act 2009. The Commission's ruling underscores the necessity for parties to negotiate and draft agreements that adequately address employee entitlements and obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established