Krispy Kreme Australia Pty Ltd t/a Krispy Kreme Doughnuts

[2020] FWCA 2168

[2020] FWCA 2168

FAIR WORKCOMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Krispy Kreme Australia Pty Ltd t/a Krispy Kreme Doughnuts
(AG2020/702)

KRISPY KREME NATIONAL ENTERPRISE AGREEMENT 2020

Fast food industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 26 MAY 2020

Application for approval of the Krispy Kreme National Enterprise Agreement 2020.

[1] Krispy Kreme Doughnuts has applied for approval of a single enterprise agreement known as the Krispy Kreme National Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application identified bargaining representatives for the Agreement as Mr Brown (for the Applicant), the United Worker’s Union (UWU) and five individual employee bargaining representatives. The Commission confidentially received further information from Krispy Kreme Doughnuts and the Shop Distributive and Allied Employees’ Association (SDA) which establishes that the SDA was a bargaining representative by default pursuant to s.176(1)(b) of the Act.

[3] Since the application was made, concerns were raised about the form of the application and whether the pre-approval requirements were met, the Agreement passes the better off overall test and contravenes s.55 of the Act. Further information was provided in relation to these concerns, addressed in turn below.

[4] Two conferences were convened at which the concerns were discussed, no party pressed for a hearing and there was no opposition to the matter being determined on the papers. Accordingly, I have determined the application on the basis of the materials before the Commission.

Form of the application

[5] Krispy Kreme Doughnuts applied to amend the original application, by filing a completed Agreement signature page. The amendment was not opposed. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

Whether the pre-approval requirements were met

[6] Further information was provided in relation to the scope of the Agreement, how the steps taken to appropriately explain the terms and effect of the Agreement constituted all reasonable steps and about the voting cohort.

[7] On the basis of the application materials and the further information provided to the Commission, I am satisfied that the group of employees covered by the Agreement was fairly chosen, all reasonable steps were taken in compliance with s.180(5) and there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the relevant employees in accordance with ss.186 and 188 of the Act.

Better off overall test assessment

[8] An enterprise agreement passes the “better off overall test” in accordance with s.193 of the Act if the Commission is satisfied, as at the test time, that each award covered employee and each prospective award covered employee would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee.

[9] Concerns about whether the Agreement passes the better off overall test were initially raised by the UWU and the Commission. Further information was provided in relation to those concerns. A conference was convened on 22 April 2020, at which those concerns were discussed. The Applicant subsequently proposed undertakings to address those concerns. On 27 April 2020, the UWU advised the Commission that it did not oppose the proposed undertakings.

[10] On 28 April 2020, the SDA sought to be involved in the approval process. On 1 May 2020, the SDA outlined the basis on which it sought to be heard which was limited to the Commission’s better off overall test assessment. A further conference was convened on 5 May 2020 at which the SDA’s concerns about the better off overall test were discussed. On 7 May 2020, the Applicant proposed further undertakings which included amendments to address some of the SDA’s concerns. On 8 May 2020, the SDA declared its support of the Agreement being approved subject to the better off overall test. It provided a list of concerns and table comparison of the Agreement provisions with the Fast Food Industry Award 2010 and advised the Commission that it did not wish to further ventilate these matters.

[11] The amended written undertakings of 7 May 2020 were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings) and the views of all bargaining representatives known to the Commission were sought. The employer bargaining representative supported the Undertakings. The other bargaining representatives did not oppose the Undertakings (albeit the SDA did not consider all of its concerns were addressed by the Undertakings).

[12] In conducting an overall assessment, I have had regard to all identified benefits and detriments of the Agreement (as submitted by the Applicant, the UWU and the SDA) and the Undertakings provided. I consider that the employees and prospective employees to be covered are better off overall under the Agreement than if the relevant reference instruments applied.

[13] 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.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[14] Also having regard to the Undertakings, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

Bargaining representatives covered by the Agreement

[15] The UWU and the SDA, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers these organisations.

The Agreement is approved

[16] On the basis of the material contained in the application, amended Agreement, further information provided and the Undertakings, 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.

[17] The Agreement was approved on 26 May 2020 and, in accordance with s.54, will operate from 2 June 2020. The nominal expiry date of the Agreement is 26 May 2024.

DEPUTY PRESIDENT

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Annexure A