Koko Black Australia Pty Ltd
[2024] FWCA 664
•20 FEBRUARY 2024
| [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 for the Agreement have been sought in relation to the Undertakings.
Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.
Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met. As to my satisfaction that the Agreement passes the BOOT, I note that:
(a)the Shop, Distributive and Allied Employees’ Association (SDA), being a bargaining representative for the Agreement, initially made submissions that the Agreement did not pass the BOOT. However, after revised undertakings were given by the Employer at the hearing of this matter to address a number of concerns raised by both the SDA and the Commission, the SDA did not press a view one way or another as to whether the Agreement passes the BOOT;
(b)there was a dispute as to whether employees covered by the Agreement are covered by the Restaurant Industry Award 2020 (Restaurant Award) or the General Retail Industry Award 2020 (Retail Award). It has not been necessary to determine this question because I am satisfied that the Agreement, considered together with the Undertakings, will ensure that employees will be better off overall under the Agreement compared to either the Restaurant Award or the Retail Award. Generally speaking, the Retail Award provides for some enhanced benefits for employees compared to the Restaurant Award. I have had regard to all benefits available to employees under the Retail Award and the Restaurant Award in reaching my satisfaction that the BOOT is satisfied in this matter;
(c)the revised modelling provided by the Employer helpfully modelled various scenarios and showed that in each such scenario the hypothetical employee would be better off financially under the Agreement compared to the Retail Award. This modelling assisted in my assessment of the BOOT; and
(d)in assessing the BOOT, I have undertaken a global assessment of all the benefits and detriments for employees under the Agreement compared to the Retail Award and the Restaurant Award. The benefits under the Agreement include higher (loaded) rates of pay, an entitlement for an employee (during a shift) to have either food or beverage of their choice, up to the value of $10, 40% discount on all Koko Black branded products, and one paid “Wellbeing Day” per year for Assistant Store Managers and Store Managers. I have given limited weight to the 40% discount on Koko Black products because this benefit is contingent on an employee purchasing a Koko Black product. Relevant detriments include the removal of annual leave loading, which I am satisfied has been absorbed into the loaded rates of pay. Many of the other detriments identified by the SDA have been resolved, or reduced to a significant extent, by the Undertakings, including increasing the pay rates for employees on a public holiday to match the public holiday rates under the Retail Award.
The SDA withdrew its contention that the Agreement was not genuinely made. The material before the Commission establishes to my satisfaction that the Agreement was genuinely made.
The SDA has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 February 2024. The nominal expiry date of the Agreement is 27 February 2028.
DEPUTY PRESIDENT
[1] CFMMEU v Macmahon Contractors Pty Ltd[2018] FWCFB 4429 at [28]; CFMMEU v Lightning Brick Pavers (2018) 281 IR 9 at [24]
[2] CFMMEU v C&H Acquisition Pty Ltd (2020) 296 IR 294 at [37]
Printed by authority of the Commonwealth Government Printer
<AE523596 PR771630>
0
0
0