Koko Black Australia Pty Ltd - [2024] FWCA 664

[2024] FWCA 664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Koko Black Australia Pty Ltd

(AG2023/5074)

KOKO BLACK ENTERPRISE AGREEMENT 2023

Restaurants
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 FEBRUARY 2024

Application for approval of the Koko Black Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Koko Black Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test (BOOT) requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 4 December 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

As to the question of financial detriment, the Undertakings confer financial benefits on employees; they do not impose financial detriments.

As to whether the effect of accepting the Undertakings is likely to result in substantial changes to the Agreement, it is relevant that the Undertakings do not seek to alter the structure of remuneration paid under the Agreement.[1] The Undertakings use the remuneration structure built into the Agreement and enhance benefits for employees by increasing the rates paid to employees in particular scenarios. The Undertakings also include an appropriate reconciliation clause to ensure that salaried employees remain better off overall under the Agreement compared to the underlying award. I am satisfied that the Undertakings do not change the “essence or nature” of the Agreement.[2]

The views of each person who the Fair Work Commission knows is a bargaining representative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 664
Decision Date: 20 FEBRUARY 2024

CaseChat Overview and Summary

Koko Black Australia Pty Ltd recently faced a legal matter concerning the approval of their Enterprise Agreement for the year 2023. The Fair Work Commission was the court tasked with examining this application. The dispute centred around whether the proposed agreement complied with the relevant federal legislation, specifically the Fair Work Act 2009.

The primary legal issues before the Commission involved the procedural fairness of the agreement, its compliance with the statutory requirements, and whether it met the standard of being in the best interests of the employees. The Commission had to determine if the agreement was genuinely negotiated, if it adequately covered all mandatory terms, and if it provided fair and reasonable terms for the employees.

In delivering its decision, the Commission found that the agreement was indeed the product of genuine bargaining. It was comprehensive, covering all necessary terms and conditions of employment as required by the Act. Furthermore, the Commission was satisfied that the agreement offered fair and reasonable terms to the employees. Consequently, the Commission approved the Koko Black Enterprise Agreement 2023, ensuring its compliance with all statutory obligations.

As a result of the Commission's approval, the agreement is now legally binding between Koko Black Australia Pty Ltd and its employees, providing a framework for their employment terms and conditions for the specified period.

Orders