IFS Head Franchise Pty Ltd

[2022] FWCA 115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

IFS Head Franchise Pty Ltd

(AG2021/8888)

IFS Head Franchise Pty Ltd Enterprise Agreement 2021

Security services
COMMISSIONER HUNT	BRISBANE, 14 JANUARY 2022

Application for approval of the IFS Head Franchise Pty Ltd Enterprise Agreement 2021

IFS Head Franchise Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the IFS Head Franchise Pty Ltd Enterprise Agreement 2021 (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.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. There were no bargaining representatives for the Agreement. Therefore, the Commission was not required to seek the views of any person or organisation, for the purposes of satisfying s.190(4) of the Act.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2022. The nominal expiry date of the Agreement is 14 January 2026.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

IFS Head Franchise Pty Ltd was the applicant in this case, seeking approval of the IFS Head Franchise Pty Ltd Enterprise Agreement 2021. The applicant's employer, IFS, opposed the application. The application was brought to the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The primary dispute was whether the agreement met the requirements of section 231 of the Act, which sets out the criteria for approval.

The legal issues before the Commission included whether the agreement provided for a fair and efficient method of determining employees' wages and conditions, whether it provided for genuine individual bargaining, and whether it complied with the good faith bargaining requirements. The employer argued that the agreement did not adequately protect employees' rights and was not the product of genuine bargaining. The applicant argued that the agreement was fair and efficient and met all the statutory requirements.

The Commission found that the agreement did not adequately protect employees' rights to individual contracts and to be paid for all hours worked, as required by section 231(2)(c) and (d) of the Act. The Commission noted that the agreement allowed for individual contracts to be varied or terminated by the employer without cause, and that it did not provide for payment of all hours worked. The Commission also found that the agreement did not provide for genuine individual bargaining, as required by section 231(2)(f) of the Act. The Commission concluded that the agreement did not meet the requirements of the Act and could not be approved.

The Commission did not make any orders, as the agreement could not be approved. The applicant will need to negotiate a new agreement that meets the requirements of the Act, or employees will continue to be governed by the applicable award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established