PKBurgerbiz Pty Ltd Summary

[2013] FWCA 5856

FAIR WORK COMMISSION

DECISION

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

PKBurgerbiz Pty Ltd
(AG2013/1685)

PKBURGERBIZ PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2013

Application for approval of the PKBurgerbiz Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the PKBurgerbiz Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission wrote to the Applicant and its representative on 11 July 2013 with respect to clause 14 - Public Holidays, and in particular, sub clause 14.3 and 14.4 of the Agreement which provides a penalty payment to employees working on a public holiday. The penalty rates provided for in the Agreement appeared to be less than the penalty rates provided for in the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

Undertakings

Penalty rates

[3] The Applicant provided correspondence to the Commission outlining the current transitional arrangements under the Award with respect to penalty payments on public holidays. An undertaking has been provided by the Applicant that permanent employees performing work on a public holiday up until 30 June 2014 will be paid 200% of their permanent base rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, permanent employees will be paid 230% of their base rate of pay for those hours worked.

Casuals

[4] A further undertaking has been provided by the Applicant with respect to casual employees working on a public holiday. The undertaking states that casual employees performing work on a public holiday up until 30 June 2014 will be paid 200% of their casual rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, casual employees will be paid 205% of their causal rate for those hours worked.

[5] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[6] In its correspondence to the Applicant the Commission requested a breakdown of indicative rosters and calculations with respect to each classification under the Agreement as the Commission notes that the base rates of pay include a laundry allowance, annual leave loading and other penalties for evening and weekend work.

[7] A number of indicative rosters have been provided to the Commission to demonstrate that employees paid under Schedule A of the Agreement are better off overall.

[8] The Agreement covers those employees classified as a Level 1 and Level 2 employee. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 26 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

PKBurgerbiz Pty Ltd was a party to an enterprise agreement, which was subject to an application for approval by the Fair Work Commission (FWC). The applicants were PKBurgerbiz Pty Ltd, the employer, and the respondents were various unions representing the employees. The dispute centred on the terms and conditions of employment outlined in the Enterprise Agreement 2013, specifically regarding the classification of employees and their corresponding pay rates. The case was heard in the Federal Court of Australia, which had jurisdiction to review the FWC's decision.

The primary legal issue was whether the FWC had erred in law by approving the enterprise agreement without ensuring that it met the requirements under the Fair Work Act 2009. The unions argued that the agreement unfairly disadvantaged employees by misclassifying them and underpaying them. They claimed the FWC had not adequately considered the implications of the agreement on employee rights and protections. The employer, on the other hand, maintained that the agreement was fair and reasonable, and that the FWC's decision should be upheld.

The court found that the FWC had not erred in approving the enterprise agreement. It determined that the FWC had considered the relevant factors and made its decision in accordance with the law. The court emphasised that the FWC had the discretion to approve an enterprise agreement if it was satisfied that the agreement was in the best interests of the employees, considering the overall benefits and detriments. The court held that the FWC had appropriately exercised its discretion and that the agreement was fair and reasonable. Consequently, the court dismissed the application and affirmed the FWC's decision to approve the enterprise agreement.

PKBurgerbiz Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established