Huruba Pty Ltd atf Huruba Unit Trust T/A Barney Allen's
[2009] FWA 1600
•14 DECEMBER 2009
[2009] FWA 1600 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(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
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