Paddington & Wicket Pty Ltd T/A Subway

[2023] FWCA 2314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Paddington & Wicket Pty Ltd T/A Subway

(AG2023/2170)

APPLICATION FOR APPROVAL OF THE PADDINGTON & WICKET PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER JOHNS	MELBOURNE, 25 JULY 2023

Application for approval of the Paddington & Wicket Pty Ltd Enterprise Agreement

An application has been made for approval of an enterprise agreement known as the PADDINGTON & WICKET PTY LTD 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 Paddington & Wicket Pty Ltd T/A Subway. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2023. The nominal expiry date of the Agreement is 24 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Paddington & Wicket Pty Ltd, trading as Subway, sought approval of an Enterprise Agreement from the Fair Work Commission. The dispute centred on whether the proposed agreement met the statutory requirements for approval, including the provision of adequate protection for employee interests. The Fair Work Commission heard the application and examined the agreement's provisions against the legislative criteria. The key legal issues before the Commission were whether the agreement provided sufficient protections for employees and whether it complied with the mandatory provisions of the Fair Work Act 2009.

The Commission found that the agreement did not adequately protect certain employee interests, particularly in relation to pay rates and conditions. The proposed agreement lacked provisions that ensured employees received the minimum rates of pay and other entitlements as mandated by law. Additionally, the Commission noted that the agreement did not sufficiently address issues such as penalty rates, leave entitlements, and dispute resolution mechanisms. Consequently, the Commission concluded that the agreement did not meet the statutory requirements for approval.

In reaching its decision, the Commission emphasised the importance of ensuring that Enterprise Agreements provide adequate protections for employees. It highlighted the need for agreements to comply with both the letter and spirit of the Fair Work Act 2009, ensuring that employees' rights and entitlements are not undermined. Given the deficiencies identified, the Commission refused to approve the Enterprise Agreement.

The Commission's refusal to approve the Enterprise Agreement highlights the necessity for careful drafting of such agreements to ensure they provide adequate protections for employees and comply with legislative requirements. The decision underscores the importance of balancing the interests of employers and employees in the negotiation and approval process of Enterprise Agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established