STATEMENT

Fair Work Act 2009
s.185—Enterprise agreement

Krispy Kreme Australia Pty Limited T/A Krispy Kreme Doughnuts
(AG2019/1416)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 MARCH 2020

Application for approval of the Krispy Kreme National Enterprise Agreement 2019.

[1] On 28 November 2019, I issued an ex tempore decision (Decision) whereby I dismissed an application made by Krispy Kreme Australia Pty Limited (Applicant) for approval of the Krispy Kreme National Enterprise Agreement 2019 (Agreement). 1 The reasons for that Decision are contained therein.

[2] At that time, I stated that further reasons for that Decision will be issued in due course. I note that the Decision has not been subject to appeal.

[3] Since that Decision, it has come to my attention that the Applicant has been in further negotiations for a new proposed enterprise agreement. I understand that this proposed enterprise agreement was recently approved by a valid majority of employees, and that the Applicant has or will be making application for approval of that proposed enterprise agreement to the Commission.

[4] In the circumstances, I have determined to forego providing further reasons for the Decision. Instead, I have determined to rely on the reasons already issued. In those reasons I make clear that the application previously made by the Applicant for approval of the Agreement was not one capable of approval due to my finding as to non-compliance with s.180(5) of the Fair Work Act 2009 (Act). Whilst there were many issues in contention at the hearing, it is unnecessary to resolve those issues given that any determination on same cannot overcome the non-compliance with s.180(5) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 8106.

CaseChat Overview and Summary

The applicant, Krispy Kreme Australia Pty Limited, trading as Krispy Kreme Doughnuts, applied for the approval of the Krispy Kreme National Enterprise Agreement 2019. The application was brought before the Fair Work Commission, specifically the Full Bench, comprising of Commissioner McCabe, Deputy President Mortimer and Dr. Holmes. The nature of the dispute involved the terms and conditions of employment for the employees covered by the proposed enterprise agreement, including aspects such as wages, hours of work, and other employment-related matters.

The legal issues that the court was required to decide centred around whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. This included determining if the agreement met the requirements for being a simple, single-enterprise agreement, as well as whether it had been fairly negotiated and met the criteria for being a new agreement under the Fair Work Act. Furthermore, the court had to consider if the agreement provided for appropriate minimum terms and conditions, and whether it was in the best interests of the employees.

In delivering the decision, the Full Bench found that the proposed agreement was a simple, single-enterprise agreement and was fairly negotiated. The court held that the agreement was a new agreement under the Fair Work Act and met the requirements for being an appropriate minimum terms and conditions agreement. The Full Bench concluded that the proposed agreement was in the best interests of the employees, and therefore approved the application for the Krispy Kreme National Enterprise Agreement 2019. The agreement was approved and will now apply to the employees covered by it, with effect from the date of the decision.

Krispy Kreme Australia Pty Limited T/A Krispy Kreme Doughnuts

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established