Mel & Mel Enterprises Pty Ltd T/A Subway - [2024] FWC 3264

[2024] FWC 3264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Mel & Mel Enterprises Pty Ltd T/A Subway

(AG2024/1884)

COMMISSIONER TRAN

MELBOURNE, 28 NOVEMBER 2024

Application for approval of the Mel & Mel Enterprises Pty Ltd Enterprise Agreement 2024 - Agreement not approved

Mel and Mel Enterprises Pty Ltd applied for approval of an enterprise agreement known as the Mel & Mel Enterprises Pty Ltd Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009 (Cth). The Agreement is a single enterprise agreement. Mel and Mel is a franchisee of the Subway sandwich chain and operates two Subway stores in South Australia. One of the stores is located as part of a petrol station. Some employees work solely at one store and some employees work across both stores.

The Shop, Distributive and Allied Employees Association (SDA) is a default bargaining representative for the Agreement and filed a Form F18 on 19 June 2024. The SDA does not support approval of the agreement as it says the Agreement was not genuinely agreed and the Agreement would not pass the better off overall test.

I do not approve the proposed agreement because I am not satisfied that it was genuinely agreed to as the Employer did not take all reasonable steps to explain the terms and effect of the Agreement, as required by s 180(5) of the Act. My reasons follow.

Procedural Background

I reviewed the application, proposed Agreement, supporting documents and the Commission’s Agreements Team checklist and raised various concerns with Mel and Mel by email on 11 June 2024. Mel and Mel replied to my email on 14 June 2024 and also offered undertakings with its reply.

The SDA filed its form F18 on 19 June 2024, which did not support approval of the Agreement. The SDA also sought copies of the approval application and supporting documents and asked that the matter be programmed for hearing.

My chambers provided redacted materials to the SDA and issued directions. In compliance with those directions, parties filed materials, including submissions, witness statements and case authorities.

The matter was listed for hearing via Microsoft Teams on 25 July 2024. Mel and Mel did not rely on any witness evidence other than the declaration filed with its application. Mr Ali Amin, Industrial Officer, gave evidence on behalf of the SDA.

After the hearing, Mel and Mel provided further undertakings on 29 July 2024. The SDA provided its view about those undertakings. This was that as a result of the undertakings, it would not press its concerns regarding the Better Off Overall Test. However, it continued to press that the Agreement should not be approved as the Agreement was not genuinely agreed.

The SDA also brought to my attention the decision of Deputy President Beaumont in Application by LFP Australia Pty Ltd t/a Subway.[1] Mel and Mel did not make any further submissions in relation to the above decision.

Legislative Requirements

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.

Continue reading Mel & Mel Enterprises Pty Ltd T/A Subway

Details

AGLC: Mel & Mel Enterprises Pty Ltd T/A Subway [2024] FWC 3264
Case: [2024] FWC 3264
Decision Date: 28 NOVEMBER 2024

CaseChat Overview and Summary

Mel and Mel Enterprises Pty Ltd, a franchisee of the Subway sandwich chain operating two Subway stores in South Australia, applied for approval of an enterprise agreement under section 185 of the Fair Work Act 2009. The Shop, Distributive and Allied Employees Association (SDA) opposed the application, arguing that the agreement was not genuinely agreed and failed the better off overall test. The key issue before the Fair Work Commission was whether the employer had taken all reasonable steps to explain the terms of the agreement, as required by section 180(5) of the Act. The Commission found that the employer did not adequately explain the terms of the agreement, particularly in relation to allowances, penalty rates, and minimum rates of pay. The employer's explanation was insufficient to meet the needs of the employees, who were mostly young workers with little or no experience in the fast food industry. Consequently, the Commission was not satisfied that the agreement was genuinely agreed to and did not approve the agreement. The SDA's other concerns about the better off overall test were addressed through employer undertakings, but this did not affect the decision since the genuine agreement test was not met.

Orders