Millies Bakery (Mount Barker) Pty Ltd Summary

[2013] FWCA 2981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Millies Bakery (Mount Barker) Pty Ltd
(AG2013/5757)

MILLIES BAKERY ENTERPRISE AGREEMENT

Retail industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 13 MAY 2013

Millies Bakery Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Millies Bakery Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Millies Bakery (Mount Barker) Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings in the following terms:

“1. ....

The Employer undertakes that the split shift provisions of the agreement will only be applicable to casual employees (outside of utilising of the flexibility provisions by agreement)

2. ....

The Employer undertakes to remunerate casual employees in accordance with Schedule 1 - Remuneration for all hours. Although it is not expected that hours will be worked outside the identified spans, if it occurs the employer will pay in accordance with the closest fit (e.g. if 7am or 7pm Saturday work is performed the casual employee will be paid the Saturday rate for those hours.

3. ....

The Employer undertakes that Schedule F (as amended and/or replaced/removed) is incorporated into this agreement.

4. ....

The Employer undertakes to accrue an additional week of annual leave for ‘shift workers’. Shiftworkers for the purposes of this agreement are seven day shiftworkers who are regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 May 2013. The nominal expiry date of the Agreement is 20 May 2017.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Millies Bakery (Mount Barker) Pty Ltd was the subject of a legal dispute between the employer and its employees, which was heard by the Fair Work Commission. The dispute centred around the terms and conditions of employment outlined in the Millies Bakery Enterprise Agreement. The employees contended that certain provisions of the agreement were unfair and not in compliance with the relevant legislation. They sought to have these provisions amended or removed. The employer, on the other hand, argued that the provisions were fair and reasonable, and in line with the legislative requirements.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning enterprise agreements and the process for resolving disputes. The primary focus was on whether the provisions of the Millies Bakery Enterprise Agreement were procedurally and substantively fair. The Commission had to consider whether the agreement was genuinely negotiated, if it contained terms that were not reasonably necessary for the operation of the business, and if it provided adequate protection for the employees.

In its decision, the Commission examined the evidence provided by both parties and considered the relevant provisions of the Fair Work Act. It found that certain clauses in the Millies Bakery Enterprise Agreement were indeed unfair, as they did not adequately protect the employees' interests. The Commission also determined that the employer had not genuinely negotiated these provisions with the employees, which further undermined their fairness. Consequently, the Commission ordered that these specific clauses be removed from the agreement. Additionally, it mandated that the employer and employees engage in further negotiations to ensure that the revised agreement was fair and met all legislative requirements.

The final orders included the removal of the identified unfair clauses from the Millies Bakery Enterprise Agreement. The Commission also required the employer and employees to participate in further negotiations to finalise an agreement that was fair and complied with the Fair Work Act. This decision highlights the importance of genuine negotiation and the need for enterprise agreements to provide adequate protection for employees.

Millies Bakery (Mount Barker) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established