Krispy Kreme Australia Pty Limited T/A Krispy Kreme Doughnuts

[2025] FWCA 174

[2025] FWCA 174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Krispy Kreme Australia Pty Limited T/A Krispy Kreme Doughnuts

(AG2024/4845)

KRISPY KREME NATIONAL ENTERPRISE AGREEMENT 2024

Fast food industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 16 JANUARY 2025

Application for approval of the Krispy Kreme National Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Krispy Kreme National Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Krispy Kreme Australia Pty Limited T/A Krispy Kreme Doughnuts (the Applicant). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that 212 casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that whether those 212 casual employees voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error in accordance with s.188(2) of the Act.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

1. Correspondence was sent to the Employer by my Chambers on 14 January 2024, raising a number of Better Off Overall Test (BOOT) concerns that could be less beneficial than the Award in some circumstances including where:

·   Assistant Managers at a doughnut factory work more than 2 Sundays a month, where each Sunday shift is 10 hours or more;

·   Assistant Managers at a doughnut factory work every Saturday on shifts of 10 hours or more;

·   Assistant Managers working a full week of night shifts in stores or doughnut factories;

·   Assistant Managers work non-consecutive night shifts in doughnut factories;

·   Assistant Managers work more than 3 additional hours overtime each week and Managers work more than 4 additional hours of overtime each week.

The Applicant advised my chambers in response on 14 January 2025 that it is not reasonably foreseeable that:

·   Assistant Managers at doughnut factories would work shifts at 10 or more hours on a Sunday; and

·   Assistant Managers at doughnut factories would not regularly work on a Saturday.

Further the Applicant also advised my chambers in their response of 14 January 2025 that:

·   There are no stores that are open 24 hours so therefore Assistant Managers in stores could not work a full week of night shifts;

·   The doughnut factories do not run a full week of night shifts or non-consecutive night shifts because Sunday to Tuesday have low manufacturing volumes; and

·   Time off in lieu is provided for public holidays worked and on a discretionary basis, for additional hours that lead beyond 43 hours of work in a week.

I am consequently satisfied that per s. 193A(6A) of the Act the working hours of Assistant Managers stretching beyond the limits set out in my concerns detailed in this clause, are not reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

1. The Applicant has provided written undertakings. 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.

1. 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.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[5] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Shop, Distributive & Allied Employee’s Association (SDAE) have lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the SDAE.

1. The Agreement is approved and will operate from 23 January 2025. The nominal expiry date of the Agreement is 22 January 2029.

DEPUTY PRESIDENT

[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

[2] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].

[3] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[4] Ibid.

[5] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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