Re RK & NK Pty Ltd Enterprise Agreement 2023

[2023] FWCA 4357[Note: An appeal pursuant to s.604 (C2024/157) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Rk & Nk Pty Ltd As Trustee For The Karthikeyan Family Trust T/A Subway Grovedale

(AG2023/4673)

RK & NK PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER PERICA	MELBOURNE, 19 DECEMBER 2023

Application for approval of the RK & NK Pty Ltd Enterprise Agreement

An application has been made for approval of an enterprise agreement known as the RK & NK Pty Ltd Enterprise Agreement (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 25 October 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 19 November 2023. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings are attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be a term of the Agreement under section 201(3) of the Act.
Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved today 19 December 2023. It will operate from 26 December 2023 as required by section 54 of the Act. The nominal expiry date is 19 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application for approval of the RK & NK Pty Ltd Enterprise Agreement 2023 was heard in the Fair Work Commission. The applicant, RK & NK Pty Ltd, sought approval of the agreement under section 233 of the Fair Work Act 2009. The agreement in question was entered into between the applicant and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement met the requirements for registration under the Fair Work Act, specifically whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the Commission involved determining if the agreement was a genuine enterprise agreement and whether it contained terms that were fair and reasonable for the employees. The Commission needed to assess whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This included examining whether the agreement had been made in good faith, whether it was made without coercion, and whether it provided for fair and reasonable terms and conditions of employment. Additionally, the Commission considered whether the agreement met the better-off-overall test, ensuring that employees were not worse off as a result of the agreement.

The Fair Work Commission found that the RK & NK Pty Ltd Enterprise Agreement 2023 was a genuine enterprise agreement that complied with the requirements of the Fair Work Act. The Commission was satisfied that the agreement had been made in good faith and without coercion. The terms of the agreement were considered fair and reasonable, providing appropriate protections and benefits for the employees. The Commission also determined that the agreement met the better-off-overall test, as employees would not be worse off under the new terms compared to their previous conditions. Consequently, the Commission approved the agreement for registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established