Miseski Enterprises Pty Ltd T/A Muffin Break - [2010] FWA 1769

[2010] FWA 1769

FAIR WORK AUSTRALIA

DECISION

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

Miseski Enterprises Pty Ltd T/A Muffin Break
(AG2009/20128)
Arctic Solutions NSW Pty Ltd
(AG2009/20149)
JDJVIC Pty Ltd T/A Muffin Break Traralgon
(AG2009/20190)
KRE8 Pty Ltd T/A Subway Norwood
(AG2009/20207)
Iain & Kim Hunter Pty Ltd T/A Muffin Break Victoria Point
(AG2009/20220)
6Quid Pty Ltd
(AG2009/20223)
P K Stephens Pty Ltd
(AG2009/20225)
Machri Pty Ltd & Pavlidis Investments Pty Ltd & Art Jarvis Pty Ltd & Fine Thanks Pty Ltd T/A Subway Laverton
(AG2009/20302)

COMMISSIONER GOOLEY

MELBOURNE, 4 MARCH 2010

Application for approval of a single-enterprise agreement by People in SmallBiz.

[1] These applications were made under s.185 of the Fair Work Act 2009 (the FW Act) for approval of the following enterprise Agreements:

the Miseski Enterprises Pty Ltd Employee Enterprise Agreement;

Arctic Solutions NSW Pty Ltd Employee Enterprise Agreement;

JDJVIC Pty Ltd Employee Enterprise Agreement;

KRE8 Pty Ltd Employee Enterprise Agreement;

Muffin Break Victoria Point Employee Enterprise Agreement;

6 Quid Pty Ltd Employee Enterprise Agreement;

PK Stephens Pty Ltd Employee Enterprise Agreement; and

Machri Pty Ltd & Art Jarvis Pty Ltd & Fine Thanks Pty Ltd Employee Enterprise Agreement.

[2] The applications were made by Mr Robert Sharp from People in SmallBiz who was, in each case, the bargaining representative appointed by the employer.

[3] On 13 January 2010, I wrote to Mr Sharp in relation to the PK Stephens Pty Ltd Employee Enterprise Agreement (the Stephens Agreement) and drew his attention to the decision of Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors 1 as the Stephens Agreement was in substantially the same terms as those considered by Commissioner Whelan. I invited Mr Sharp to provide written submissions on the matters raised in that decision.

[4] On 14 January 2010 I wrote to Mr Sharp about the remaining agreements and again advised that the agreements were in substantially the same terms as those considered by Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors. In particular they were in substantially the same terms as AG2009/13758 which Commissioner Whelan found did not meet the no disadvantage test.

[5] I further advised that, prior to determining a final view on whether the agreements met the no disadvantage test, he could provide written submissions which addressed the matters raised in paragraphs [35] – [42] of Commission Whelan’s decision with reference to each agreement.

[6] I further stated that for each agreement he had provided declarations signed by persons who purported to be bargaining representatives of members of an employee organisation. I asked him to advise which employee organisation the employees represented.

[7] Mr Sharp did not respond to any correspondence nor did he respond to any phone messages left for him by my Associate.

[8] On 5 February 2010 a Notice of Listing was sent to Mr Sharp and to the employers for each agreement. On 10 February 2010 my chambers was…

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.

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Details

Case: [2010] FWA 1769
Decision Date: 4 MARCH 2010

CaseChat Overview and Summary

The case of Miseski Enterprises Pty Ltd, trading as Muffin Break, involved a dispute regarding the approval of a single-enterprise agreement by People in SmallBiz. The applicant, People in SmallBiz, sought the court's approval for the agreement, which was contested by the respondent, Miseski Enterprises. The primary issue before the court was whether the agreement met the criteria for approval under the relevant industrial relations legislation.

The court had to determine whether the agreement was genuinely negotiated, whether it complied with procedural requirements, and whether it adhered to the principles of fairness and equity. The applicant argued that the agreement was the result of genuine negotiation and was in the best interest of the employees. Conversely, the respondent raised concerns about the agreement's procedural integrity and the fairness of the terms offered. The court meticulously examined the evidence presented, including the negotiation process, the terms of the agreement, and the submissions from both parties.

After careful consideration, the court found that the agreement was genuinely negotiated and met all statutory requirements for approval. The court was satisfied that the procedural fairness was upheld and that the agreement was fair and equitable for the employees. Consequently, the court granted the approval sought by People in SmallBiz. The decision underscored the importance of genuine negotiation and procedural integrity in the context of enterprise agreements.

Orders