Retail and Fast Food Workers Union Incorporated v Hungry Jack's Australia Pty Ltd t/a Hungry Jack's

[2020] FWCFB 1693

[2020] FWCFB 1693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Retail and Fast Food Workers Union Incorporated
v
Hungry Jack's Australia Pty Ltd t/a Hungry Jack's
(C2020/41)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
DEPUTY PRESIDENT COLMAN SYDNEY, 9 APRIL 2020

Appeal against decision [2019] FWC 8492 of Deputy President Boyce at Sydney on 16 December 2019 in matter number AG2019/1291.

Introduction and background

[1] The Retail and Fast Food Workers Union Incorporated (RFFWUI) has lodged an appeal, for which permission is required, against a decision issued by Deputy President Boyce on 16 December 2019 1 (decision) in which he approved the Hungry Jack’s National Enterprise Agreement 2019 (Agreement). In its notice of appeal lodged on 6 January 2020, the RFFWUI contends that the Deputy President erred in approving the Agreement because the requirements of ss 186, 188 and 190 of the Fair Work Act 2009 (FW Act) were not met and because the Deputy President erred in reaching a state of satisfaction that the Agreement passed the better off overall test (BOOT) and had genuinely been agreed to by the employees covered by it. It also contends that the Deputy President denied procedural fairness to employees who would be covered by the Agreement and to the bargaining representatives by failing to provide “further reasons’ for his decision. On 4 March 2020 the RFFWUI applied for leave to amend its notice of appeal to add an additional appeal ground, namely that there was never any enterprise agreement before the Commission capable of approval. The employer covered by the Agreement (the identity of which will be elucidated later in this decision), and the Shop, Distributive and Allied Employees’ Union (SDA), a bargaining representative of employees covered by the Agreement, oppose leave being granted to amend the notice of appeal, oppose the grant of permission to appeal and oppose the appeal being upheld.

[2] The circumstances which have led to this appeal are unusual, to say the least, and require some preliminary explanation. Hungry Jack’s Pty Ltd 2 (Hungry Jack’s) is the employer of approximately 16,000 persons working in a chain of well-known fast food restaurants in Australia. Hungry Jack’s is a subsidiary of Hungry Jack’s Australia Pty Ltd3 (HJA). Prior to the Agreement taking effect, the employees of Hungry Jack’s had been covered on a state-by-state basis by a number of collective agreements made under the Workplace Relations Act 1996 and preserved in effect by the FW Act. On or about 24 August 2016, bargaining for a new enterprise agreement commenced when a notice of employee representational rights (NERR) was sent to all employees of Hungry Jack’s working in its fast food restaurants. The first sentence of the NERR stated: “Hungry Jack’s Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement National Hungry Jack’s Enterprise Agreement 2017 which is proposed to cover employees that work in the Fast Food Industry”. The NERR in our view left no room for doubt that the enterprise agreement proposed was to cover Hungry Jack’s and its employees in its fast food restaurants.

[3] There followed a long period of bargaining in which employees were represented by the SDA and the Australian Workers’ Union (AWU) (on behalf of employees in northern Queensland). Hungry Jack’s did not appoint a bargaining representative pursuant to s 176(1)(d) of the FW Act and represented itself in the negotiations. Eventually Hungry Jack’s, the SDA and the AWU settled upon an outcome and, on 22 March 2019, Hungry Jack’s provided its employees with a copy of the Agreement through its internal online information system and notified them that it intended to conduct an online ballot in respect of the Agreement commencing on 3 April 2019.

[4] We have earlier identified the title of the Agreement, which simply refers to “Hungry Jack’s”. However the coverage clause of the Agreement upon which employees were requested to vote blurred the picture. Clause 4 of the Agreement provides:

“4. Coverage

4.1 This agreement shall apply to Hungry Jack’s Australia Pty Ltd, as well as its subsidiaries, licensees and their associated companies operating food outlets and all employees of Hungry Jack’s as defined.

4.2 The agreement will also cover:

(a) The Shop, Distributive and Allied Employees’ Association (“SDA”); and

(b) The Australian Workers’ Union (Queensland Branch) (“AWU”).”

[5] It is not in dispute that HJA, to which the Agreement is said to apply, is not the employer of anybody employed in the Hungry Jack’s restaurants. As earlier stated, the Hungry Jack’s company is a subsidiary of HJA, and therefore it and its employees would fall within the coverage delineated by clause 4.1. It is also not in dispute that no NERR was ever sent to any employees of any entity other than Hungry Jack’s, so that apart from Hungry Jack’s itself the reference to “subsidiaries, licensees and their associated companies” had no effective work to do. This was not a case of an agreement that was intended to apply to employees of several single-interest employer entities, and in this respect we note that the application for approval of the Agreement that was subsequently made stated, in answer to question 2.1 in the standard Form F16, that there was only one employer covered by the Agreement. It has not been explained why the drafter of the Agreement expressed the coverage of the Agreement in the way it did instead of simply reflecting the terms of the NERR which had previously been issued.

[6] On 24 March 2019, two individual employees of Hungry Jack’s nominated the RFFWUI as their bargaining representative, although one of these subsequently left the employment of Hungry Jack’s.

[7] On 25 March 2019, Hungry Jack’s employees were provided through the internal information system with a video presentation (presentation) which explained the bargaining process, how to access the relevant documents, the major changes effected by the Agreement and the voting process. The presentation simply referred to “Hungry Jack’s” throughout. As to the content of the Agreement, the presentation:

•  stated that the Agreement was “based on having the Fast Food Industry Award as the minimum standard”;

•  identified that there were differences between the Agreement and the Fast Food Industry Award 2010 (Award) in respect of rates of pay (including juniors), employee classifications, part-time and full-time employee provisions, paid leave, breaks, crew meetings, abandonment of employment, dispute resolution, superannuation, allowances, notice of termination, overtime, uniforms and withholding of pay on termination, transfer of business and hours of work;

•  gave an outline of the principal conditions for full-time and part-time employees under the Agreement;

•  set out the award equivalent classifications for each classification under the Agreement;

•  explained that base rates of pay under the Agreement would be set and increased in line with the Award and that permanent employees would receive an additional loading of 0.5% and ultimately 0.75% by 1 July 2021 on non-penalty ordinary hours, and that casual employees would receive an additional loading of 0.25% on non-penalty ordinary hours;

•  stated that all allowances would be in line with the Award and would increase when the Award increases;

•  set out the penalty rates for night work and early morning work Monday to Friday, and for Saturdays, Sundays and public holidays, which were said to be “exactly the same as the Fast Food Industry Award”, with provision for the Sunday penalty rate to change in line with any change to the Award;

•  said that the Agreement provided entitlements to full-time and part-time employees additional to those in the Award and the National Employment Standards (NES) in the form of personal leave being credited at the start of the year from the second year of employment, an extra day’s compassionate leave, two days’ paid “National Disaster Leave”, and two days’ paid and three days’ unpaid domestic violence leave; and

•  stated that it had “only outlined a few aspects that differ between the award and the proposed agreement” and advised employees to review the Agreement and the more detailed comparison document which were available on the online information system before voting.

[8] The comparison document contained a comparison of the “major changes” in the Agreement compared to the Award, namely the provisions concerning dispute resolution, full-time employment, part-time employment, notice of termination by an employee, abandonment of employment, redundancy, transfer of business, classifications, minimum weekly wage, savings clause, junior rates, allowances increase, Sunday penalty rate mirroring, additional allowances in the Agreement, superannuation, hours of work, restaurant security, overtime, breaks, shutdowns and refurbishment, personal/carer’s leave, compassionate leave, natural disaster leave, NSW public holiday and domestic violence leave.

[9] Hungry Jack’s also held meetings of employees at each restaurant to further explain the terms of the Agreement. The SDA, and parents and guardians of non-adult employees, were invited to these meetings. Employees were also invited to raise any questions about the Agreement or the process with their restaurant manager.

[10] The voting process commenced on 3 April 2019 and ended on 17 April 2019. Of a total of 16,311 employees, 10,855 cast a vote and 10,141 voted to approve the Agreement.

[11] Section 185 of the FW Act relevantly provides that, within 14 days of an enterprise agreement being made, a bargaining representative must apply to the Commission for approval of the agreement. Under s 176(1)(a) of the FW Act, an employer who will be covered by an agreement is a bargaining representative for the agreement. Accordingly the appropriate entity to make the application pursuant to s 185 on the employer’s side was Hungry Jack’s. However, the application for approval that was before the Deputy President, which was lodged on 18 April 2019, identified the applicant as “Hungry Jack’s Australia Pty Ltd” with the ACN 065 643 343. As earlier stated, HJA did not employ anyone who would be covered by the Agreement, so it was not a bargaining representative and accordingly was not competent under s 185 to make the application for approval of the Agreement.

[12] The application was initially the subject of a full assessment by the Commission’s staff, and a “Single Enterprise Agreement Legislative Checklist” (Checklist) was completed by 2 May 2019, approximately two weeks after the application for approval of the Agreement was lodged. The Checklist identified a number of potential approval difficulties in respect of the dispute resolution term, the flexibility term, consistency with the NES and the BOOT. The BOOT difficulties identified included that:

•  the rate for an Assistant Manager under the Agreement only matched or fell below the corresponding rate in the Award;

•  the Agreement allowed some employees to be paid salaries without indicating what those salaries would be; and

•  ordinary-time base rates of pay were only slightly above the Award rates for non-penalty rate ordinary hours and were otherwise the same as the Award rates, and might be offset by detriments including greater uncertainty as to part-time hours of work at time of engagement, the capacity for employees to work additional hours at ordinary-time rates of pay, a lower base rate for employees under the Supported Wage System, the omission of a cold work disability allowance, and a lesser pay benefit when required to work through meal breaks.

[13] On 30 April 2019, the RFFWUI sent correspondence to the Commission requesting to be heard in relation to the application for approval of the Agreement. The application was initially allocated to another member of the Commission who promptly (on 6 May 2019) requested that the RFFWUI file any submissions in relation to the application by 13 May 2019. This member conducted a conference in relation to the matter on 10 May 2019, and the RFFWUI’s submissions were received in accordance with the earlier direction on 13 May 2019. The RFFWUI raised, in brief summary, the following concerns:

(1) The Agreement did not pass the BOOT, in that:

•  for non-team leaders, the rate of pay is only very slightly above the Award for hours worked between 6.00am and 10.00pm, Monday to Friday, and is otherwise the same as the Award;

•  for Team Leaders, the rate of pay is below the Award;

•  the Award allowance for the performance of delivery duties using the employee’s own car is, in the Agreement, excluded for employees who are not engaged primarily to perform delivery duties;

•  the Agreement provides for a deduction of moneys for uniforms on the termination of employment which is not provided for in the Award;

•  the meal break provisions in the Agreement are less beneficial than in the Award;

•  the dispute resolution procedure does not provide for the representation of employees until the second stage of the dispute process and there is no clear statement of the right to have a representative as provided for in the Award;

•  the Agreement contains a shutdown and refurbishment provision which is detrimental when compared with the Award;

•  the Agreement requires superannuation contributions to be paid into the Retail Employees Superannuation Trust (REST), unlike the Award which provides for superannuation choice; and

•  the part-time employment provisions of the Agreement do not provide for a guarantee that hours will be worked on set days at set times, unlike the Award, and therefore needed to be compared to casual employment under the Award, which were manifestly more beneficial because of the 25% casual loading.

(2) The dispute settlement term in the Agreement did not meet the requirements of s 186(6) of the FW Act in that it did not allow for the representation of employees.

(3) There was no proper explanation of the terms of the Agreement and their effect as required by s 180(5) and (6) of the FW Act, in that a number of the terms of the Agreement were not explained at all and a number of detriments in the Agreement compared to the Award were not identified. A proper and accurate comparison between the Agreement and the Award was particularly necessary given that the workforce was predominantly young and part-time or casual.

[14] On 20 May 2019, submissions were filed by the applicant (that is, in the name of HJA) which objected to the RFFWUI’s standing to make submissions in the matter but otherwise responded to the matters in the RFFWUI’s submissions. In addition, the then-representative for HJA filed on 20 May 2019 a document which was described as a response to issues raised by the member then dealing with the matter at the conference on 10 May 2019. The document was in tabular form, setting out in the left column the issue raised and in the right column the response. In a number of cases, the response included a proposed undertaking. An issue was identified in relation to clause 4.1 as follows:

“Current clause 4.1 provides the agreement will apply to all employees of Hungry Jack’s Australia Pty Ltd as defined. Employees are defined as [all] national system employee[s] within the meaning of the Act and could therefore presumably include all employees of the employer including head office staff, senior management and other employees who were probably not intended to be covered by the Agreement.”

[15] The response was:

“The Employer asks that it be noted this was an obvious error and the Agreement was intended to include the limitation under 4.1 that it only applies to employees for whom a classification exists under clause 17 of the Agreement.

If required, the Employer agrees to provide an undertaking so limiting the Agreement as above, or alternatively if required will request the Commission to vary the Agreement under s.217 of the Act to remove an uncertainty or ambiguity in the drafting of the Agreement.”

[16] The SDA filed its own submissions on 22 May 2019. On 28 May 2019, the RFFWUI was served by the Commission with the submissions of HJA and the SDA, and was directed to provide any submissions in response by 4 June 2019. The RFFWUI filed submissions in accordance with this direction on 4 June 2019.

[17] Due to a change in internal allocation procedures in the Commission, the matter was re-allocated to the Deputy President on 25 June 2019. We observe that, at this point, the Deputy President had before him all that was necessary to make an immediate decision: the evidentiary material in the Form F17 statutory declaration which accompanied the application; the Checklist, which identified from the Commission’s perspective the potential difficulties in approving the Agreement; the submissions of the RFFWUI, which was the only party opposing approval of the Agreement; and the submissions in response from HJA and the SDA, and proposed undertakings to resolve concerns previously raised by the Commission. At this point, the anomalous references to HJA found in the application and clause 4 of the Agreement still required an explanation. While the existence of the anomaly might not perhaps have been obvious, it was eminently detectible from a diligent reading of the file, because the NERR had identified Hungry Jack’s Pty Ltd as the employer, and each of the existing collective agreements that applied to the employees in question (all of which were listed in the Form F17 statutory declaration) stated that the employer covered by the agreement was Hungry Jack’s Pty Ltd. The Deputy President could therefore have identified the anomaly, raised it with the parties, dealt with what was a curable defect (as we explain below) and determined the application. However, this did not happen.

[18] It is not necessary to map out in detail the meandering course of the proceedings before the Deputy President over the course of the following six months, which involved widely interspersed hearings in July, September, October and November 2019, except to refer to some matters arising from a written submission made in the name of Hungry Jack’s and filed on 23 September 2019. The submission consisted of eight pages of text and 50 paragraphs. The very last paragraph read as follows:

“Clarification

50. The employer of employees to be covered by the Agreement is Hungry Jack’s Pty Ltd (ACN 008 747 073; ABN 25 008 747 073) which is a subsidiary of Hungry Jack’s Australia Pty Ltd.”

[19] It is apparent that Hungry Jack’s had by this time realised the error in the identification of the proper employer in clause 4.1 of the Agreement and in the application for approval of the Agreement. It did not make a formal application pursuant to s 586(a) of the FW Act to correct the name of the applicant in the application for approval of the Agreement in order to ensure that there was a competent application before the Commission. It may have expected the Deputy President to dispense with the requirements of the Rules or waive an irregularity in the manner in which the application had been made. However, it should have made an express application to this effect. The matter was not raised again at any subsequent point in the proceedings prior to the decision although, from this point, the company’s correspondence with the Deputy President referred to Hungry Jack’s Pty Ltd.

[20] The submission of 20 September 2019 attached a letter signed by Ms Jenny McKie, the Chief People Officer of Hungry Jack’s, and dated 20 September 2019 which contained a number of proposed undertakings referred to in the text of the letter. Omitting formal parts, the letter stated:

“Undertakings

In the Fair Work Commission

FWC Matter No: AG2019/1291

Applicant: Hungry Jack’s Pty Ltd T/A Hungry Jack’s

Agreement: Hungry Jack's National Enterprise Agreement 2019

I, Jenny McKie, Chief People Officer for Hungry Jack's Pty Ltd ('the Employer') give the following undertakings in accordance with section 190 of the Fair Work Act 2009 (Cth) ('the Act'), with respect to the Hungry Jack's National Enterprise Agreement 2019 ('the Agreement'):

Authority to give undertakings

1. I have the authority given to me by the Employer to provide these undertakings in relation to the application before the Fair Work Commission.

Clause 2 Commencement

2. In relation to clause 2.1 of the Agreement, the Employer undertakes that that Agreement shall remain in force for a period of not more than 4 years after the day on which the Fair Work Commission approves the Agreement.

Clause 4 Coverage

3. In relation to clause 4.1 of the Agreement, the Employer undertakes that the Agreement will apply only to employees of Hungry Jack’s in the classifications listed at clause 17 of the Agreement.

Clause 7 Individual Flexibility Arrangements

4. Under clause 7.9 of the Agreement, the Employer undertakes to give a copy of the individual flexibility arrangement to the employee within 14 days after it is agreed.

5. Under clause 7.11(b) of the Agreement, the Employer undertakes that the Agreement may be terminated by the either employer or employee by giving no more than 28 days written notice to the other party.

6. The Employer undertakes that terms of any individual flexibility arrangement made under clause 7 of the Agreement are about permitted matters under section 172 of the Act; and are not unlawful terms under section 194 of the Act.

Clause 9 Dispute resolution

7. The Employer undertakes to permit the employee to appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 9 of the Agreement.

Clause 17 Classifications

8. With regards to clause 17.2 of the Agreement, an employee engaged as Crew Member-Team Lead will not have responsibility for supervising Crew Members and/or training new employees.

Clause 18 Minimum Weekly Wages

9. In relation to clause 18 of the Agreement, the Employer undertakes that the minimum weekly wage for an Assistant Manager will be $860.70 per week.

10. For the purposes of clause 18.2 of the Agreement, the Assistant Manager Agreement classification is mapped to the Fast Food Industry Award classification of a Level 3(b) employee.

Clause 20.4 Uniforms and Special clothing

11. In relation to clause 20.4(d) of the Agreement, the Employer undertakes to not withhold $30.00 to offset the costs of the uniform not being returned, in circumstances where the employee gives evidence satisfactory to the employer that the employee was not at fault.

Clause 20.5 Delivery Drivers

12. In relation to clause 20.5(h) of the Agreement, the Employer undertakes to pay an allowance of $0.41 per kilometre only where an employee is primarily engaged to perform delivery duties for the employer. Where the employee is requested to use their own private motor vehicle to perform delivery duties, and the employee is not primarily engaged by the employer to perform delivery duties, the employee will be paid an allowance of $0.78 per kilometre.

Schedule 'A' - A.10.3

13. In relation to clause A.10.3 in Schedule A the Employer undertakes to that the minimum amount payable to the employee during the trial period must be no less than $87 per week.”

[21] Some important observations may be made about the above undertakings. The first is that the name of the applicant in the heading to the letter was identified, incorrectly, as “Hungry Jack’s Pty Ltd”. When read with the “clarification” in the submission, this was clearly no accident. Secondly, although undertaking 3 (using the numbering in the above letter) ostensibly formalised the undertaking proposed in the tabular submission of 20 May 2019 to address the problem raised by the Commission in respect of clause 4.1, it also referred to “employees of Hungry Jack’s”, with “Hungry Jack’s” being effectively a defined term referring to Hungry Jack’s Pty Ltd by reason of the way in which the identity of the applicant was expressed. This was clearly no accident, but no attempt was made to link this to the “clarification” in the submission of 20 September 2019.

[22] The proposed undertaking 3 was effective to resolve the problem earlier identified in the coverage provision of the Agreement, for reasons which we will explain later. However the Hungry Jack’s submission never explained that it would have that purpose, nor was any such explanation provided prior to the decision being issued.

[23] Notwithstanding the fact that Hungry Jack’s “clarification” fell short of an application to amend its application for approval of the Agreement, it must surely have been the case that if the Deputy President had actually read the Hungry Jack’s submission, he would have realised (as he later did) the significance of the “clarification” in paragraph 50. The Deputy President would have been able to take steps on his own initiative to ensure that the necessary amendment to the application was made to render it competent. But, as we explain below, it is apparent that he failed to read the submission at this time or at any time before he issued the decision.

[24] The Hungry Jack’s submission of 20 September 2019 also responded to the contention advanced by the RFFWUI concerning the alleged lack of choice in superannuation funds. Hungry Jack’s resisted this contention in its submission but in the alternative proposed that this could be remedied, if it was an issue of concern to the Commission, by an undertaking that Hungry Jack’s would “...pay an employee’s superannuation contributions into an alternative complying fund, if an employee elects so in writing”. This undertaking was not included in the letter attached to the submission but, on 12 November 2019, lawyers for Hungry Jack’s sent the Deputy President a letter formalising the proposed undertaking (although this never found its way into the electronic case file). At the hearing on 14 November 2019, the Deputy President said “It looks like the superannuation issue is resolved through the undertaking having regard to the Kmart decision”, 4 and the issue was not thereafter agitated by the RFFWUI.

[25] As earlier stated, the decision was published on 16 December 2019. The decision in its entirety read as follows:

“[1]An application has been made for approval of a single enterprise agreement known as the Hungry Jack’s National Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Hungry Jack's Australia Pty Ltd (Employer).

[2]The Employer has provided written undertakings dated 20 September 2019. Those undertakings are attached to this decision and marked as Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Fast Food Industry Award 2010) and that the undertakings will not result in substantial changes to the Agreement. I note that those undertakings become terms of the Agreement.

[3] The Shop, Distributive and Allied Employees Association (SDA) and the Australian Workers’ Union (AWU), being bargaining representatives of a registered employee organisation for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover each of them. In accordance with s.201(2) of the Act, I note the agreement covers these organisations.

[4] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am also satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is hereby approved and, in accordance with s.54 of the Act, will operate from 23 December 2019. The nominal term of the Agreement will expire on 23 December 2023.

[7] Further reasons for this decision will be published in due course.”

[26] The decision did not deal with the “clarification” referred to in Hungry Jack’s submissions of 20 September 2019. Annexure A to the decision contains a copy of Ms McKie’s undertakings letter dated 20 September 2019. The superannuation undertaking contained in the Hungry Jack’s letter of 12 November 2019 was not included in Annexure A and therefore, presumably, not accepted under s 190 of the FW Act in the decision.

[27] As stated above, the RFFWUI lodged its notice of appeal on 6 January 2020. The Deputy President had not by that time published his foreshadowed reasons but was evidently in the process of writing his reasons because when, on 7 January 2020, the RFFWUI requested access to the case file for the purpose of preparing its appeal book, the Deputy President’s chambers responded by stating that the file would not be released until his reasons for decision had been published. On 20 January 2020 the appeal was listed for hearing on 26 March 2020. The next development was that on 3 March 2020, the Deputy President’s chambers listed the matter for a telephone hearing on 9 March 2020. The following day, the Deputy President’s chambers sent an email to the legal representative of Hungry Jack’s/HJA, copied to the SDA, the AWU and the RFFWUI, which stated (omitting formal parts):

“1. I write on behalf of Deputy President concerning the re-listing of the above matter at 1:30pm AEDT next Monday, 9 March 2020 (by telephone).  Representatives of the SDA, AWU, and RAFFWU have also been copied into this email.

2. It is noted that the Commission approved the Hungry Jack’s National Enterprise Agreement 2019 (Agreement) on 16 December 2019 (see [2019] FWCA 8492).

3. However, in drafting further reasons for that decision, the Deputy President’s attention has been drawn to the Applicant’s Outline of Further Submissions dated 20 September 2019 (at [50]), which reads:

“Clarification

50. The employer of employees to be covered by the Agreement is Hungry Jack’s Pty Ltd (ACN 008 747 073; ABN 25 008 747 073) which is a subsidiary of Hungry Jack’s Australia Pty Ltd.”

4. The above so-called “clarification” was not otherwise raised (orally or in writing) by the Applicant or unions in this matter.  It was not subject to any argument or objection before the Commission.

5. Clause 4.1 (Coverage) of the Agreement is expressed as coverage of the employer in the following terms “Hungry Jack’s Australia Pty Ltd, as well as its subsidiaries, licensees and their associated companies” (my emphasis).

6. Even if it be accepted by the Commission that as a matter of law, a single enterprise agreement cannot extend coverage to an employer’s “subsidiaries, licensees and their associated companies”, and thus clause 4.1 ought only be read as applying to Hungry Jack’s Australia Pty Ltd, this entity (on the Applicant’s submissions above) is not the employer covered by the Agreement in any event. Rather, the true employer is Hungry Jack’s Pty Ltd.

7. Prima face, it appears to the Commission that there has never been any enterprise agreement (or proposed enterprise agreement) capable of approval by the Commission, and that the approval application must be dismissed (or most likely simply quashed pursuant to the current appeal proceedings). This is not a matter that appears capable of being cured by way of undertaking or correction (see s.586 of the Fair Work Act 2009). In other words, any undertaking or correction that purports to correct a substantial or material defect such as the name of an employer, and in turn changes one employer (corporate entity) to another, would be beyond power (and outside jurisdiction, and thus invalid). This is so even where it may be the evidence that the employer (applicant’s) name was in error, made by mistake, or will not result in any prejudice to employees. Further, this is not a matter where a single interest employer authorisation has been previously obtained, and thus applied at the time the proposed enterprise agreement was “made” (it is noted that such a single interest employer authorisation cannot be obtained so that it has the effect of retrospectively, for example, curing a defect such as the one in this matter).

8. The Commission also notes that both the F16 and F17 forms filed in these proceedings state that the “legal name of the employer” is “Hungry Jack’s Australia Pty Ltd (ACN 065 643 343; ABN 83 065 643 343)”.  There is no suggestion in any of these forms that the legal name of the employer is “Hungry Jack’s Pty Ltd (ACN 008 747 073; ABN 25 008 747 073)”.

9. In view of the foregoing, the Deputy President directs that the Applicant and the Unions file (by way of email to these Chambers), by no later than 12:00PM next Monday, 9 March 2020, any written submissions they may wish to make in regard to the above (which they can supplement orally at the telephone hearing that same day). Such submissions also ought address as to whether the Deputy President is now “functus officio”, and thus this issue is better dealt with by way of RAFFWU amending its notice of appeal, and having the issue dealt with on appeal as a threshold argument.” 

[28] At the telephone hearing on 9 March 2020, all the parties submitted that the Deputy President was now functus officio in relation to the application for approval of the Agreement. Despite this, on 17 March 2020, over three months after the decision was issued and nine days before the hearing of the appeal, the Deputy President issued a “Statement” 5 (statement), of which the most pertinent parts are as follows (footnotes omitted):

“[2] During the preparation of my further reasons, I became aware that the actual “national system employer” of the relevant employees covered by the Agreement is “Hungry Jack’s Pty Ltd” T/A Hungry Jack’s (ACN 008 747 073, ABN 25 008 747 073) (Actual Employer). However, the Actual Employer is not the named Applicant in these proceedings. This issue arises despite clause 4.1 of the Agreement (which is titled “Coverage”) being expressed to cover the Applicant. I understand the Applicant to be not only a different and distinct legal entity to the Actual Employer, but also the parent company to the Actual Employer.

[3] The issue of the Applicant not being the actual employer entity of relevant employees was not raised before me (by anyone) in oral argument during the two face-to-face hearings conducted by me in this matter. More specifically, it was not a contention raised by the Retail and Fast Food Workers’ Union (RAFFWU) who opposed the approval of the Agreement. Further, the Applicant did not appear to consider this issue to be a matter of significance such that the Applicant sought to bring the matter to my attention during the hearings. I only become aware of the subtle difference between the name of the Applicant and the name of the Actual Employer by reference to a two-line paragraph at the end of one of the Applicant’s various written submissions titled “Clarification” (as part of preparing my further reasons post the publication of my decision)...

[4] I note that all of the documents filed by the Applicant (i.e. the Form F16 and Form F17 Statutory Declaration Forms) in this matter have been filed in the name of the Applicant (not the Actual Employer). Further, all of the documents filed by the relevant employee organisations (i.e. the Form F18 Statutory Declaration Forms) in this matter identify the Applicant as the employer. No party, at any time, sought to replace or amend any of those documents. Nor did the Applicant seek to rely upon any evidence explaining to the Commission how any purported error, mistake, or mix-up between the Applicant and the Actual Employer on these documents, and/or on the face of the Agreement, occurred.

[5] Given that the name of the employer is incorrect, it appears to me that all of these documents, in their current form, are deficient (i.e. invalid) for the purposes of the application for approval in this matter. Significantly, the Form F17 (being the “Employer’s statutory declaration in support of an application for approval of an enterprise agreement”), has not been signed by a representative of the Actual Employer. Instead, the Form F17 has been signed by, or on behalf of, a representative of the Applicant. The Agreement itself has also been signed by a representative of the Applicant (and not the Actual Employer).

. . . .

[7] I further note that the Applicant has provided undertakings in this matter, not in its name, but in the name of the Actual Employer. In this regard, knowing what I know now, I do not consider that such undertakings are valid or binding as they were not made by the Applicant, but by the Actual Employer. In making my decision to approve the Agreement, I sought undertakings from the purported Applicant employer, not the Actual Employer (i.e. the latter has never made an appearance in these proceedings). Again, the Applicant did not specifically bring to my attention the fact that the undertakings provided were not in its name. Further, Mr Tim McDonald (Solicitor, Morey & Agnew Lawyers, appearing on behalf of the Applicant) did not bring to my attention at any time that he was not only representing the Applicant in these proceedings, but also the Actual Employer.

. . . .

[10] On the basis of the submissions of the Applicant, and undertaking three (of the undertakings published with the approval of the Agreement), I accepted that the Agreement would only cover and apply to the relevant employees who were given the opportunity to vote to approve the Agreement (being those employees listed in the classifications found at clause 17 of the Agreement).

[11] I also accepted that the Agreement could only ever cover “Hungry Jack’s Australia Pty Ltd” and not “its subsidiaries, licensees and their associated companies operating fast food outlets”. I do not consider there to be any basis under the Act, or otherwise, for an enterprise agreement to cover current and/or future unnamed and unidentified “subsidiaries, licensees and their associated companies operating fast food outlets” of an Applicant employer. This is especially so when the Applicant is not even an “employer” (let alone a “national system employer”)...

[12] In my view, these issues are not merely matters of technicality or ambiguity that can be resolved or cured by way of variation under, for example, s.217 of the Act. The purported employer named in the Agreement is “Hungry Jack’s Australia Pty Ltd”. This may be an error, but it is not a technicality or ambiguity. Indeed, it can hardly be a technicality that the purported employer named in the Agreement is not only not the employer of relevant employees, but not an employer at all. In my view, if the Applicant genuinely considered this to be a matter of technicality or ambiguity, the Applicant would have either never lodged the originating application in its own name, or immediately sought to amend its originating application (and filed relevant and direct evidence as to how long the Applicant was aware of this issue, why the Applicant chose to file the originating application that it did, and why the Applicant chose to conduct itself in these proceedings in respect of this issue in the manner that it did).

. . . .

[15] Having heard from the parties during that hearing, prima face, it now appears to me that there was never a proposed enterprise agreement capable of approval by the Commission, and that the application for approval of the Agreement ought to have been dismissed. Indeed, it appears to me that the current application ought to have never been made (i.e. lodged with the Commission for approval in the first place). I note that this is not a matter that appears capable of being cured by way of undertaking or correction...

[16] During the hearing, the parties jointly submitted that I am now functus officio in terms of dealing with the issues that flow from the Applicant not being the actual employer. I concur with the parties in this regard. Given that these proceedings are now subject to appeal, the issues I have identified in this Statement are now a matter for the Full Bench to consider and determine. I note that RAFFWU advised me (at the hearing on 9 March 2020) that it had already amended its Notice of Appeal to include this issue as a ground of appeal.

[17] I make one final observation in this matter. In my view, the fact that the Applicant is not the actual employer of relevant employees (or an employer at all) is an issue that ought to have been squarely brought to my attention by the Applicant orally at the commencement of the hearing. This issue is not one that should have been hidden away at the back of a set of written submissions under a heading “Clarification”. The approach totally downplays the significance of the issue, and is therefore not an approach that has anything to commend it. In my view, it is very unfortunate that this issue was known to the Applicant, but was not raised in a totally upfront manner with the Commission.

. . . ”

[29] This statement does not constitute reasons for decision. It is not necessary for us to address the various legal or factual propositions it contains. The Deputy President has to date not produced any further reasons for the decision. We take it from the statement that the Deputy President has abandoned any intention to do so.

Submissions and further evidence on appeal

RFFWUI

[30] In the appeal, the RFFWUI submitted that:

(1) The Deputy President erred in being satisfied under s 186(2)(d) of the FW Act that the Agreement passed the BOOT. The RFFWUI submitted that the Agreement did not pass the BOOT for reasons essentially the same as those advanced at first instance and summarised in paragraph [13] above, and noted that the Deputy President had given no reasons as to why he had reached the requisite state of satisfaction under s 186(2)(d).

(2) The Deputy President erred in concluding that the requirements of s 180(5) and (6) had been met, and thereby erred in reaching a state of satisfaction that the Agreement had been genuinely agreed to as required by s 186(2)(a) as explicated in s 188(1)(a)(i). The evidence disclosed that the employer had not compared the Agreement to the extant industrial instruments at all, and only limited terms were explained as compared to the Award.

(3) The Deputy President erred by not publishing reasons for the decision and thereby denied the RFFWUI procedural fairness, in circumstances where the matter was vigorously contested and the subject of a number of competing submissions and hearings.

(4) There was no enterprise agreement capable of approval because the employer named as covered by the Agreement did not in fact employ anyone. Nor was the application made by a bargaining representative, as required by s 185(1). In those circumstances the Commission had no power to approve the Agreement.

[31] It was submitted by the RFFWUI that permission to appeal should be granted in the public interest because the Agreement did not comply with the BOOT and covered more than 16,000 employees, the appeal raises a significant procedural issue as to the Commission’s procedure for assessing whether agreements meet the statutory approval criteria, injustice would accrue to the employees covered by the Agreement if it was left in place, and the duty to give reasons is a matter of broad public interest.

Hungry Jack’s

[32] Hungry Jack’s submitted that the RFFWUI did not have standing to appeal because it was not a “person aggrieved” by the decision as required by s 604(1) of the FW Act. It did not, it was submitted, seek to appeal the decision on behalf of any particular person covered by the Agreement, but sought to do so in its own right in circumstances where it was not a registered organisation and had no relevant interest in the matter. Hungry Jack’s also submitted that permission to appeal should be refused because the RFFWUI acted as agent for only one employee whereas the remaining 16,300 employees did not oppose the approval of the Agreement, the employees benefited from wage increases paid after the Agreement was approved, and risked being worse off if approval of the Agreement was quashed and there was a reversion to the previously-applicable instruments. The RFFWUI’s appeal, it was submitted, did not raise any issue of importance or general application or identify a diversity of decisions or disharmony in the application of legal principles requiring appellate guidance, nor did the decision manifest injustice or involve a counter-intuitive result.

[33] In relation to the BOOT grounds of appeal, Hungry Jack’s submitted that the RFFWUI’s submissions focused on the microscopic application of particular clauses without considering the overall effect of the Agreement, and that the alleged detriments in respect of choice of superannuation funds, meal breaks, changes to part-time employment, shutdown and refurbishment and uniform deduction were either not in fact detriments for the purpose of the BOOT or were outweighed by the benefits of the Agreement. In relation to the issue of genuine agreement and compliance with s 180(5), it was submitted that the evidence demonstrated that Hungry Jack’s undertook a rigorous process to explain the terms of the Agreement and their effect. As to the failure to publish reasons, it was submitted that there was no such failure because the Deputy President indicated that reasons would be published and, in any event, this ground of appeal merely related back to the other grounds of appeal which were lacking in merit.

[34] In relation to the RFFWUI’s proposed additional ground of appeal, Hungry Jack’s submitted that the RFFWUI should not be granted leave to amend its notice of appeal because it sought to advance a new argument that had never been raised at first instance, and indeed the RFFWUI had proceeded before the Deputy President on the basis that there was a valid application for approval of an agreement before the Commission. In any event, Hungry Jack’s submitted that the ground was without merit because:

•  a valid NERR had been issued by Hungry Jack’s to its employees;

•  the employees of Hungry Jack’s had approved the agreement in a valid voting process;

•  clause 4.1 provided that the Agreement covered Hungry Jack’s, since it was a subsidiary of HJA, and its employees;

•  a valid agreement was therefore made pursuant to s 182 of the FW Act on 17 April 2019, and was able to be submitted to the Commission for approval; and

•  any error in the identification of the applicant in the application for approval could be remedied by the Full Bench on appeal pursuant to s 607(3)(a) by way of a variation to the decision.

[35] In the alternative, if it was necessary to uphold the appeal, it was submitted that the Full Bench could re-determine the application for approval of the Agreement itself. In anticipation of that possibility, on 27 March 2020 Hungry Jack’s filed an amended application for the approval of the Agreement which identified the applicant as “Hungry Jack’s Pty Ltd” with an ACN of 008 747 073.

[36] Hungry Jack’s also read an affidavit sworn by Ms McKie on 25 March 2020 in which she stated, among other things, that:

•  she was the Chief People Officer of Hungry Jack’s;

•  HJA is the parent company of Hungry Jack’s and holds its entire issued share capital;

•  Hungry Jack’s employed about 16,311 persons in the fast food industry, whereas HJA employed only four persons who were not covered by the Award;

•  the NERR and subsequently the Agreement and the voting instructions were issued to all employees of Hungry Jack’s who worked in the fast food industry, and the information system required each employee to open them and acknowledge that they had received and read them;

•  only the 16,311 employees of Hungry Jack’s in the fast food industry were allowed to participate in the voting process;

•  she had completed the Form F16 application for approval of the Agreement, and she had incorrectly stated that the applicant was HJA;

•  she had also completed the accompanying Form F17 statutory declaration and again she wrongly identified HJA as the legal name of the employer;

•  on 16 September 2019, when reviewing the submission to be filed with the Commission that she identified the erroneous references to HJA in the application and the statutory declaration;

•  it was determined that the matter should be drawn to the Commission’s attention in the submissions due to be filed on 20 September 2019, and the undertaking numbered 3 was also provided on the same day;

•  Hungry Jack’s is the only direct subsidiary of HJA;

•  HJA does not employ and has no intention to employ anybody in the classifications covered by the Agreement;

•  prejudice would result to Hungry Jack’s if the RFFWUI was allowed to proceed with its amended notice of appeal, since Hungry Jack’s had migrated to a new payroll system upon approval of the Agreement;

•  the approval of the Agreement had resulted in significant new benefits to employees at a cost to Hungry Jack’s which was already well in excess of $4 million; and

•  Hungry Jack’s new payroll system would be unable to facilitate a reversion to the previous industrial instruments.

SDA

[37] The SDA submitted that:

•  the appeal was not competent because the RFFWUI had no standing in its own right to bring the appeal, not being a registered organisation and not otherwise having a relevant interest, and the appeal did not purport to be brought in the interests of the one employee which it represented;

•  any failure to give reasons did not automatically lead to the appeal being upheld and the decision quashed, unless there was a demonstration that the resulting denial of procedural fairness could have made some difference to the outcome;

•  because the decision was a discretionary one, it needs to be demonstrated that the outcome was unreasonable or plainly unjust such as to permit the inference that there was a failure to properly exercise the discretion;

•  the BOOT detriments raised by the RFFWUI are of no substance: the superannuation fund issue was dealt with by a proposed undertaking, although this was not appended to the decision; the uniform deduction issue was dealt with by an undertaking; the meal breaks clause in the Agreement is superior to that in the Award; and the employer’s submission on the shutdown and refurbishment made before the Deputy President ought be accepted; and

•  the RFFWUI’s submissions advanced in the appeal concerning the explanation of the Agreement were cursory, and the detailed submissions about this made at first instance by Hungry Jack’s and the SDA were correctly accepted by the Deputy President.

Consideration

Standing to appeal

[38] We consider that the RFFWUI has standing to institute the present appeal. Section 604(1) confers a capacity to appeal, subject to the requirement for permission to appeal, upon a “person who is aggrieved by a decision”. This expression has been assigned a wide meaning. It extends beyond persons whose legal interests are directly affected by the decision and registered organisations whose broader industrial and membership interests might be affected, and encompasses any person who has an interest in the decision beyond that of an ordinary member of the public. 6 In this case, we consider that the RFFWUI has the requisite standing because it was a bargaining representative for the Agreement appointed in accordance with s 176(1)(c) of the FW Act, it was permitted to be heard on the approval of the Agreement at first instance (and indeed probably had a right to be heard in its capacity as a bargaining representative), and its submissions were (apparently) rejected in the decision.

Permission to appeal

[39] The unusual circumstances attending this appeal lead us to be satisfied that the grant of permission to appeal would be in the public interest. That things went badly astray in the proceedings before the Deputy President is sufficiently demonstrated by the fact that the Deputy President approved the Agreement in the decision and foreshadowed that he would publish his reasons later, then never published his reasons but instead issued a statement expressing his view that he should not have approved the Agreement. Full Bench review of this regrettable state of affairs is clearly required. Permission to appeal is therefore granted as required by s 604(2) of the FW Act.

Failure to publish reasons

[40] It is sufficient to dispose of the appeal to determine ground 5 in the notice of appeal, which contends that the Deputy President’s failure to publish the further reasons foreshadowed in the decision constitutes appealable error.

[41] The FW Act does not in terms require that reasons be given for every decision made. Section 601(2) of the FW Act simply provides that the Commission “may give written reasons for any decision that it makes”. However an obligation to give reasons which address material issues of fact and law may arise as an incident of the fundamental requirement upon the Commission to act judicially and provide procedural fairness, and will certainly be implied in any case where the decision significantly affects the rights and interests of relevant persons, the matter is seriously contested and the appeal facility in s 604 is available. 7

[42] It is not in contest in this appeal that the Deputy President had an obligation to give adequate reasons for his decision. The Deputy President himself recognised that the content of the decision which he published on 16 December 2019 was not adequate to explain the outcome he had determined insofar as he indicated his intention to publish further reasons. As earlier explained, he has not done so and, we infer from the statement, does not intend to do so.

[43] The Deputy President’s failure to give adequate reasons for his decision was a function of the course he chose to take of issuing his decision with an intention of publishing full reasons at a later time - a course which was, in the circumstances of this case, entirely unsatisfactory. Where the circumstances of a particular case or the FW Act itself require an urgent decision to be made, this course may be a necessity. However there was nothing urgent about this particular case beyond the fact that a matter which could have been decided in early July 2019 remained undecided five months later. In an appropriate case, the reasons for a decision may be reduced to writing and published after the decision is issued but, logically, in order to be reasons for a decision, they must be the reasons formulated in the mind of the decision-maker as justifying the decision at the time the decision is made. Otherwise, the subsequent written “reasons” are merely an ex post facto justification for the decision, being a statement of what the reasons for the decision could have been had they occurred to the decision-maker at the time of the decision. The course taken by the Deputy President was inappropriate for the reasons explained in the judgment of Chernov JA (with whom Charles and Vincent JJA agreed) in Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd  8:

“[31] There are many reasons why it is ‘eminently desirable’ that reasons be given at the same time as judgment is pronounced. They include the following. First, the parties are entitled to a decision which is based on the reasoning process of the judge which has been concluded by the time the decision is pronounced. The court should not reserve to itself the opportunity to mould reasons, after the pronouncement of judgment, so as to make them appear consistent with the decision. That is not to say, of course, that a judge cannot review the reasons after they have been published. I will mention that matter again at a later stage. Secondly, the unsuccessful party should be in a position to determine within the time constraints imposed by the Rules of Court, whether to appeal against the decision. From a realistic point of view, it can only do this if the reasons for the decision are made available to it when, or very shortly after, judgment is pronounced. There are other sound reasons based on policy and practical considerations which were mentioned by Kirby, P and Priestley, JA in Palmer and to which I have referred which support the view that as a general rule, all judicial officers who are required to give reasoned judgments, should do so when pronouncing them...”

[44] The capacity to “mould reasons” when they are published after the decision is all the more to be deprecated where, as in this Commission, there is an internal appeal facility and members may readily have access to the notice of appeal and the grounds of appeal contained therein. In this case we note that the Deputy President appears to have still been attempting to formulate his reasons for decision well after the RFFWUI lodged its notice of appeal on 6 January 2020.

[45] That the failure of the Deputy President to provide adequate reasons for his decision involved a significant denial of procedural fairness may be illustrated in two ways. First, we infer from the fact that the Deputy President only noticed the “clarification” in the Hungry Jack’s submission of 20 September 2019 while preparing his reasons on or about 3 March 2020 that he had not read that submission either in part or in whole, and perhaps had not read other submissions, when he made the decision. Where parties to proceedings are required to present their respective cases wholly or to a substantial degree by way of written submissions, as here, a failure to read those submissions will necessarily amount to a straightforward breach of the hearing rule. The consequences of that failure here were significant, because had the Deputy President deferred making the decision until he was ready simultaneously to publish his reasons, he would presumably have got around to reading the 20 September 2019 submission and therefore been in a position to deal properly with the issues flowing from the “clarification”.

[46] Second, it is clear that in respect of the Agreement, there was a serious question to be determined as to whether it passed the BOOT. Clause 18 of the Agreement provides for the wage rates for five classifications, and four of these are the same as the Award rates. Clause 18.1 provides for pay increments in excess of the Award, but these are payable only in respect of “non-penalty ordinary hours” which, as a result of the penalty rate provisions in clause 25.7, only consist of 6am to 10pm Monday to Friday. In respect of a fast food chain of the nature of Hungry Jack’s, it is not difficult to envisage that some casual and part-time employees will work their entire ordinary hours on weekends. For such employees it would be necessary to find some other non-contingent benefit in the Agreement in order to be properly satisfied that all such employees would be better off overall compared to the Award, and this necessarily made the BOOT issue a very finely balanced one. This difficulty is apparent on the face of the Agreement, was pointed out in the Checklist, and was emphasised in the RFFWUI’s submissions. No undertaking offered by Hungry Jack’s prior to the decision addressed this issue in any significant way.

[47] It may be presumed from his approval of the Agreement in the decision that the Deputy President was satisfied that the Agreement passed the BOOT, and it is not apparent that he resiled from this in the statement. However, in the absence of reasons, it is impossible to identify the basis upon which the Deputy President reached that state of satisfaction, particularly in relation to the class of employees to which we have referred. There is no obvious benefit afforded to this class by the Agreement as compared to the Award upon which it could be presumed that the Deputy President’s satisfaction as to the BOOT was founded. The absence of reasons and the incapacity otherwise to readily identify any logical grounds for the Deputy President’s conclusion as to the BOOT render the decision an arbitrary one. As Deane J said in Australian Broadcasting Tribunal v Bond: 9

“If the decision were determined by the toss of a coin or some other arbitrary procedure, the ‘right’ to a hearing would be illusory. If the decision could be based on unreasoned prejudice, the audi alteram partem rule would be pointless.”

[48] Further, the lack of reasons has substantially diminished the rights of the parties to the appeal, since for the appellant it is not possible to identify the basis upon which the Deputy President erred in relation to the BOOT and for the respondents the grounds for the Deputy President’s satisfaction as to the BOOT cannot be elucidated and defended.

[49] The failure of the Deputy President to give reasons for his decision has, we consider, wholly vitiated that decision. The appropriate course in the circumstances is to uphold the appeal and quash the decision.

[50] We do not consider it appropriate to remit the application for the approval to a single member of the Commission for re-determination. An entire year has now passed without a valid decision having been made in relation to that application, and to remit it to another member for re-determination is simply not the appropriate course. We will determine the application ourselves based on the evidence, submissions and other material that was before the Deputy President and the additional evidence and submissions received in the appeal.

Re-determination of the application for approval of the Agreement

[51] We will deal with the approval requirements in ss 186 and 187 of the FW Act, as relevant, in turn. However it is necessary at the outset to deal with the competency of the application, since the “basic rule” in s 186(1) that an agreement must be approved if those requirements are met is premised on there being “an application for the approval of an enterprise agreement under ... section 185”. An application made under s 185 is one that is made in accordance with s 185. 10 The application in the form in which it was filed was, as we have stated earlier, not made in accordance with the section because the person described as the applicant, HJA, was not a bargaining representative for the Agreement because it was not an employer who would be covered by the Agreement, not having any employees covered by the Agreement. Accordingly in its current form the application is not capable of approval.

[52] The affidavit of Ms McKie sworn on 25 March 2020 makes it clear that the identification of HJA as the applicant, instead of the actual employer Hungry Jack’s, was simply an error on her part. An application has now been made to amend the name of the applicant to Hungry Jack’s pursuant to s 586(a) of the FW Act.

[53] Consistent with the reasoning of the Full Bench majority in CFMMEU v Griffith Cranes Pty Ltd, 11 we do not consider that the application is invalid and a nullity by reason of the error made by Ms McKie; rather we consider this error to be amenable to correction under s 586(a), which authorises the Commission to “allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate”. We consider the amendment should be allowed in order to correct the error. It is clear from the history of this matter which we have set out above, including from the NERR, the negotiations, the explanatory documents and the voting process that there was always intended to be an enterprise agreement which covered Hungry Jack’s and its employees in its fast food restaurants. We do not consider that it would be fair or just that this intention be frustrated by an obvious error. We grant the amendment.

[54] We also note that the application for approval of the Agreement was arguably irregular for another reason. Section 185(2)(b) requires an application for approval of an enterprise agreement to be accompanied by “any declarations that are required by the procedural rules to accompany the application”. Rule 24(5B) of the Fair Work Commission Rules 2013 requires that an application for approval of an enterprise agreement “must be accompanied by a statutory declaration, in support of the application for approval, made by an officer or authorised employee of each employer that is a bargaining representative for the agreement”. Ms McKie’s affidavit makes it clear that Hungry Jack’s is the only employer bargaining representative for the Agreement (being the only entity which employs persons covered by the Agreement) and that she is in fact an authorised employee of Hungry Jack’s. Therefore on one view the Form F17 statutory declaration made by Ms McKie which accompanied the application for approval of the Agreement complied with the rule. However the RFFWUI points to the fact that the prescribed Form F17 requires that the name and ACN of the employer be stated in the declaration. This was not done insofar as Ms McKie incorrectly identified HJA and not Hungry Jack’s as the employer. We consider that this is an error which should also be corrected pursuant to s 586(a), noting that that the declaration is a “document relating to a matter before the FWC” to which the provision is capable of application. Accordingly the Form F17 declaration of Ms McKie of 23 April 2019 is amended to change the name and ACN of the employer to “Hungry Jack’s Pty Ltd” and “008 747 073” respectively.

[55] It is convenient at this point to deal with the contention advanced by the RFFWUI, which reflects paragraphs [10]-[15] of the Deputy President’s statement, that there was never any enterprise agreement capable of approval by the Commission. We disagree. Section 182(1) provides when a single enterprise agreement is “made” as follows:

“(1)  If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”

[56] It is important to note that the above provision operates by reference to the outcome of a voting process in which the employees of the employer(s) that will be covered by a proposed enterprise agreement that is a single-enterprise agreement are requested to participate. The RFFWUI, and the Deputy President’s statement, proceed on the presumption that the proposed agreement and the text of the agreement voted on are necessarily identical concepts under the statutory scheme. We do not accept that this is the case. The expression “proposed enterprise agreement” is used in respect of various stages of the bargaining process in Div 3 of Pt 2-4 of the FW Act, including at stages where it is likely that no text of a final agreement has been formulated. For example, s 173(2) describes when the notification time, which is the initiating point for the process, arises for a “proposed enterprise agreement”. The notification time itself may, under s 173(2), be when a majority support determination, a scope order or a low-income authorisation comes into operation; each of these are orders of the Commission which, under ss 236, 238 and 242 respectively are made by reference to a “proposed enterprise agreement” (in the former two cases, a proposed single-enterprise agreement and, in the last case, a proposed multi-enterprise agreement). Bargaining representatives for the relevant “proposed enterprise agreement” in each case may apply for the order. The NERR, which under s 173(3) is required to be issued within 14 days of the notification time by the employer to be covered by the “proposed enterprise agreement” to all employees who will be covered by that agreement, must by virtue of by s 174(1A) of the FW Act and reg 2.05 and Schedule 2.1 of the Fair Work Regulations 2009 (FW Regulations) commence with the following:

“[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].”

[57] Thus the NERR must set out the proposed coverage of the proposed agreement prior to the commencement of bargaining. The employer that will be covered by a “proposed enterprise agreement” may under s 181(1) request that the employees who will be covered by it approve it, but under s 181(2) this cannot occur less than 21 days after the last NERR in relation to the agreement is given. The effect of this provision is that the class of employees which is asked to vote in relation to the proposed agreement cannot be larger than the class of employees to which the NERR is issued, because otherwise the condition in s 181(2) will not be capable of satisfaction.

[58] Section 180 sets out a number of steps which an employer must take before requesting a vote under s 181(1) to approve a “proposed agreement”. One of these (in s 180(2)(a)(i)) is to take all reasonable steps to provide employees with “the written text of the agreement” within the period of the seven days immediately prior to the day the vote commences. The use of this distinct expression at this late stage of the process suggests that while the text is undoubtedly intended to effectuate the proposed agreement and give certainty as to what is to be voted upon, the concept of the “proposed agreement” exists prior to and independently of the ultimate text.

[59] In this case, as demonstrated by the NERR, the proposed agreement was a single-enterprise one which would only cover Hungry Jack’s and its employees in its fast food restaurants. There is no evidence that, during the extensive negotiations in respect of the proposed agreement, there was ever any agreement or intention to change that position, nor was a scope order altering that position ever made or sought. The documents provided to employees prior to the vote confirm that the proposed agreement was only ever intended to cover Hungry Jack’s and its restaurant employees. Under s 181, Hungry Jack’s was entitled to seek that employees who would be covered by the proposed agreement (so described) and were within the class that had been provided with the NERR, and those employees only, vote upon the proposed agreement, and this is what it did. The coverage clause in the written text of the agreement provided pursuant to s 180(2)(a)(i) did not accurately reflect the coverage of the proposed agreement, for reasons which remain unexplained, but that does not alter the fact that a valid request was made under s 181 for a vote upon the proposed agreement. Once a majority voted in favour, the Agreement was made in accordance with s 182(1).

[60] The further point appears to be made by the RFFWUI and in the Deputy President’s statement that, in any event, Hungry Jack’s could never have applied for approval of the Agreement because it was not an employer covered by the Agreement according to the terms of its text, and that its employees were consequently also not covered. This is not correct. Clause 4.1 of the Agreement, which we have earlier set out, provides that the employers which it covers are “Hungry Jack’s Australia Pty Ltd, as well as its subsidiaries, licensees and their associated companies operating food outlets”. As the affidavit of Ms McKie makes clear, Hungry Jack’s is a subsidiary, and indeed the only subsidiary, of HJA, and is therefore a covered employer. The employees covered are “all employees of Hungry Jack’s as defined”. There is no definition of “Hungry Jack’s” in the definitions clause (clause 3.1) of the Agreement. In that context, we consider that “Hungry Jack’s as defined” is to be read as referring to the formulation of employers covered in the same clause - that is, “Hungry Jack’s Australia Pty Ltd, as well as its subsidiaries, licensees and their associated companies operating food outlets”. Accordingly, the Agreement covers employees of Hungry Jack’s.

[61] This is not to say that the text of clause 4.1 of the Agreement is not problematic in terms of the approval requirements in ss 186 and 187 (which operate by reference to the agreement that is “made” pursuant to s 182(1), not the “proposed agreement”). As we will come to shortly, it raises a concern in relation to the “genuinely agreed” approval requirement in s 186(2)(a). However we are satisfied that there is before the Commission an enterprise agreement which is, as a result of the amendment we have allowed, the subject of a valid application for approval.

Section 186(2)(a) – genuinely agreed

[62] Section 186(2)(a) requires that we be satisfied that the Agreement was genuinely agreed to by the employees covered the Agreement. Section 188(1) defines when the requisite genuine agreement has occurred and, in summary, requires satisfaction:

(1) as to compliance by the employer(s) covered by the Agreement with s 180(2), (3) and (5);

(2) as to compliance by the employer(s) covered by the Agreement with the s 181(2);

(3) that the agreement was made in accordance with s 182(1) or (2), as applicable; and

(4) that there are no other reasonable grounds for believing that the agreement was not genuinely agreed to by the employees.

[63] As to the first matter, the Form F17 declaration is demonstrative of compliance with s 180(2) and (3) by Hungry Jack’s. In relation to s 180(5), we are satisfied that Hungry Jack’s took all reasonable steps to explain the terms of the Agreement, and their effect, to its employees. It did so by way of the presentation, the comparison documents and meetings with employees in each restaurant. In doing so, we consider that a readily comprehensible explanation of the key features of the Agreement which were likely to affect the way in which employees were likely to vote was provided. The submissions of the RFFWUI before the Deputy President proceeded on the premise that it was necessary for Hungry Jack’s to give an explanation of every single provision of the Agreement, and to identify any way in which the Agreement differed from the Award. We do not accept this premise. The central effect of this Agreement was that Hungry Jack’s was departing from pre-FW Act instruments that provided for lesser benefits than the Award and moving to a new national arrangement which had a far greater degree of alignment with the Award but differed in some respects from that Award. We consider than Hungry Jack’s took all reasonable steps to explain this. The type of hyper-detailed explanation demanded by the RFFWUI would not, we consider, have improved the comprehension of the Hungry Jack’s workforce, which was demographically young in age, but rather have produced an excessively long document that would be difficult to read.

[64] As to the second matter referred to above, we are satisfied for the reasons we have already set out that s 181(2) was complied with by Hungry Jack’s.

[65] We have emphasised compliance by Hungry Jack’s with the above provisions because on the face of clause 4.1 of the Agreement as made, it was not the only employer covered by the Agreement (as distinct from the employer intended to be covered by the proposed Agreement). There is no evidence or even an assertion that HJA or any other potential entity complied with s 180(2), (3) or (5) or s 181(2). This aspect of the s 186(2)(a) “genuinely agreed’ requirement is not satisfied.

[66] In relation to the third matter, we are satisfied for the reasons earlier stated that the Agreement was made under s 182(1). As to the fourth matter, we consider there is one ground for believing that the Agreement made was not genuinely agreed to by the employees covered by it, namely that there is no basis to conclude that the employees (if any) of the entities identified as covered by the Agreement apart from Hungry Jack’s voted to approve it.

[67] For the reasons and to the extent we have identified, we have a concern that the approval requirement in s 186(2)(a) is not satisfied.

Section 186(2)(c) – no exclusion of the NES

[68] Section 186(2)(c) requires that we be satisfied that the terms of the Agreement do not contravene s 55 of the FW Act, which subject to certain exceptions prohibits an enterprise agreement from excluding the NES or any provision of the NES. We are satisfied that it is not possible for any individual provision of the Agreement to be read as contravening s 55 because clause 6.1 of the Agreement provides:

“This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

Section 186(2)(d) – the BOOT

[69] Because of the following matters, we have a concern that the Agreement does not pass the BOOT:

(1) The rate of pay in clause 18 for the classification of Assistant Manager as at the time the application for approval was lodged was $850.30 per week. The increment payable under clause 18.1 for non-penalty rates ordinary hours is 0.5% at the commencement of the Agreement and 0.75% only from 1 July 2021. The classification arguably better aligns with the Level 3 classification in the Award. At the date the application was filed, the rate for this classification was $850.30 per week if in charge of one or no persons, and $860.70 per week if in charge of two or more persons. We cannot conclude that an Assistant Manager is better off overall under the Agreement, and such an employee may be in fact worse off if in charge of two or more persons.

(2) For persons in the other classifications in clause 18 (except the Crew Member – Team Lead), the rates of pay are the same as under the Award. The pay increments provided for in clause 18.1 do not apply to employees who work ordinary hours to which penalty rates apply. Although Hungry Jack’s submits that the proportion of employees who wholly work ordinary hours when penalty rates are applicable is low (less than 4%), there is no doubt that this cohort exists. There would also be a larger cohort that works a substantial proportion of penalty rate ordinary hours and a smaller proportion of non-penalty rate ordinary hours: for this cohort, the margin of benefit provided by the pay increments is minimal and may be outweighed by other detriments in the Agreement (discussed below). Hungry Jack’s submitted that all employees attend training and crew meetings paid at non-penalty ordinary hours from time to time, but these are so infrequent and the pay benefit obtained is so marginal that they are likely to be outweighed by other detriments. Hungry Jack’s also pointed to a range of additional benefits provided by the Agreement compared to the Award (principally consisting of the leave benefits identified in the eighth bullet point of the summary of the presentation in paragraph [7] above), but these are wholly or largely contingent benefits which are unlikely to produce any actual benefit for the large majority of employees.

(3) The definition of the classification of Crew Member – Team Lead in clause 17.2 includes responsibility for “championing a production area in front or back of house”, which may be read as involving supervisory or training duties. If so, the classification may align with the Level 2 classification in the Award, which has a significantly higher rate of pay.

(4) Clause 20.4 concerns uniforms, and paragraph (d) allows the employer to withhold $30.00 from an employee from any monies owing to the employee if the uniform is not returned. This clause applies even if there is no fault on the part of the employee. There is no equivalent provision in the Award. The provision could not be used to deduct the amount from any NES entitlements that are required to be paid out, since this would be overridden by clause 6.1, but it could operate with respect to any wages owing.

(5) Clause 20.5(f) allows the employer to require an employee to use their private vehicle to perform delivery duties, and clause 20.5(h) provides that in that circumstance the employee is to be paid an allowance of $0.41 per kilometre. However, clause 19.6 of the Award provides that the allowance is to be $0.78 per kilometre where the employee is not engaged primarily to perform delivery duties.

(6) Clause A.10.3 of Schedule A of the Agreement provides that during the trial period of an employee being assessed for capacity pursuant to the Supported Wage System, the minimum amount to be paid to the employee is $82 per week. The equivalent provision in the Award (clause C.10.3 of Schedule C) provides for a minimum payment of $87 per week.

[70] There are four aspects of the Agreement that were contended by the RFFWUI to be detriments when compared to the Award, namely the arrangement of hours for part-time employment, superannuation fund choice, meal breaks, and the shutdown and refurbishment clause. We do not accept the RFFWUI’s contentions in this regard. In relation to part-time employment, clauses 12.1, 12.2 and 12.4 of the Agreement provide:

“12.1 A part time employee is an employee who:

(a) Works at least 8 but less than 38 hours per week;

(b) Has reasonably predictable hours of work; and

(c) Receives on a pro-rata basis, equivalent pay and conditions to those of full-time employees.

12.2 At the time of engagement, the employer and the part-time employee will agree in writing upon:

(a) the number of hours of work which are guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which are guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed minimum hours); and

(b) the days of the week, and the periods in each of those days, when the employee will be available to work the guaranteed minimum hours (the employee’s agreed availability).

. . .

12.4 The guaranteed minimum hours shall not be less than 8 hours per week.”

[71] Clauses 12.1, 12.2 and 12.8 of the Award provide:

“12.1  A part-time employee is an employee who:

(a)  works less than 38 hours per week; and

(b)  has reasonably predictable hours of work.

12.2  At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

(a)  the number of hours worked each day;

(b)  which days of the week the employee will work;

(c)  the actual starting and finishing times of each day;

(d)  that any variation will be in writing, including by any electronic means of communication (for example, by text message);

(e)  that the daily engagement is a minimum of 3 consecutive hours; and

(f)  the times of taking and the duration of meal breaks.

12.3  The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular rostered shift provided that:

(a)  any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift; and

(b)  the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so.

. . . .

12.8  An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual employment.”

[72] The RFFWUI submitted that part-time employment under the Agreement would be casual employment under the Award by virtue of clause 12.8 of the Award because it does not meet the definition of part-time employment under the Award, or is generally more akin to casual employment, so that the BOOT comparison must be with casual employment under the Award. We reject this. The definition of part-time employment in clause 12.1 of the Agreement is relevantly the same as in clause 12.1 of the Award. Further, although clause 12.2 of the Agreement does not, unlike the Award, require agreement at the outset as to the days of the week required to be worked and the start and finishing times in each day, it does require that the amount of hours worked in each week or roster cycle must be fixed and confined to the days and times the employee agrees to be available to work. The requirement for agreement as to availability gives the employee a considerable degree of control over when hours are to be work, and the overriding requirement for reasonable predictability of hours remains. This position is to be contrasted to that considered by the Full Bench in Loaded Rates Agreements, 12 where the scheme of part-time employment in the Aldi enterprise agreements in question there did not provide for any guarantee of the hours of work to be provided in any particular week or for reasonable predictability of hours.13 We note in addition that clause 12.4 of the Agreement provides for a minimum of 8 hours’ work each week – a guarantee which is not contained in the Award.

[73] In respect of superannuation, the Full Bench in SDA and Kmart Australia Limited v RFFWUI 14expressed a concern in respect of the BOOT about the lack of choice of superannuation funds in an enterprise agreement in the following terms:

“[56] ... our concern arises from the particular circumstances of Kmart’s workforce, two-thirds of which are casual employees. Our assessment, having regard to the general characteristics of employment in the retail industry, is that it is likely that a significant proportion of such casual employees have previously had other casual employment or have a second job. In that context, a choice of funds may be a benefit so that the casual employee can seamlessly remain in a single superannuation fund rather than having two or more funds arising from different jobs with all the inconvenience and additional administration costs that this involves. To this extent, we agree with the some of the matters adverted to in paragraphs [131]-[133] of the Decision. However, against this, it is necessary to acknowledge, as Kmart submitted, that s 32C(6)(h) of the Superannuation Guarantee (Administration) Act 1992 provides that a contribution to a fund made under or in accordance with an enterprise agreement constitutes compliance with the employee choice of fund requirements of that Act. It might be considered paradoxical that a provision of an enterprise agreement which facilitates satisfaction of the choice of funds requirement in the superannuation legislation is capable of being characterised as a less beneficial term because it denies a right of choice.”

[74] The Full Bench also made it clear in stating that it held this concern for the purpose of s 190(1)(a) that such a concern did not “necessarily involve a final determination about the issue; it is sufficient that there is an apprehension or perturbation that the requirement in question may not be satisfied”. 15

[75] There are two distinguishing factors in this case which cause us not to have the same concern. The first is that the workforce here is not predominantly casual, unlike Kmart: the Form F17 declaration discloses that of the workforce of 16,311, only 1,100 are casual employees (with 13,396 being part-time employees). This, we infer, means that there is a more stable and longer-term workforce. Secondly, clause 22.4 of the Agreement provides that where the employer was paying superannuation contributions into a different fund before the commencement of the Agreement, the employer will continue to do so rather than paying into REST.

[76] As to the breaks provision of the Agreement, we do not consider that it is necessary to analyse it in detail. In overview, we consider that it is at least as beneficial as the Award provision and possibly more so. The shutdown and refurbishment clauses allow the employer to require employees to take annual leave, or to work at another store which is geographically nearby, where a store is not operating due to refurbishment. We do not consider that this provision gives rise to any relevant detriment.

[77] Finally, we note the comment in the Checklist that the Agreement does not contain the allowance provided for in clause 19.8 of the Award to a person principally employed in cold storage work. There is no evidence that employees of Hungry Jack’s engage in such work, so we do not regard this as relevant to the BOOT.

Section 186(3) – fairly chosen

[78] We have a concern that the group of employees expressed as covered by the Agreement in clause 4.1 was not fairly chosen to the extent that it goes beyond Hungry Jack’s and its employees.

Section 186(4) – unlawful terms

[79] We are satisfied that the Agreement does not contain any unlawful terms.

Section 186(5) – nominal expiry date

[80] Section 186(5) requires the Commission to be satisfied that an enterprise agreement specifies a date as its nominal expiry date which is not more than 4 years after the day on which the Commission approves the agreement. Clause 2.1 of the Agreement provides that it “shall take effect from the beginning of the first pay period commencing on or after 7 days of approval by the FWC and shall remain in force for a period of four years” (underlining added). The effect of this is to give the agreement a nominal term which is seven days’ longer than the permitted maximum. Accordingly we are not satisfied that the s 186(5) requirement is met.

Section 186(6) – disputes settlement term

[81] Section 186(6) requires the Commission to be satisfied that an enterprise agreement includes a term that provides for a procedure that requires or allows for the Commission or another independent person to settle disputes about any matters arising under the agreement or in relation to the NES, and that allows for the representation of employees covered by the agreement for the purpose of the procedure. We have a concern that this requirement is not satisfied because the dispute resolution procedure in clause 9 does not in terms allow for the representation of employees at the initial stage at all, and at the following stages only allows for representation by the SDA (and by the AWU at one further stage).

Section 187

[82] We are satisfied that any applicable approval requirement in s 187 is met.

Sections 202 and 203 – flexibility term

[83] Section 202 is not an approval requirement as such. It provides, in summary, that an enterprise agreement must contain a flexibility term which meets the requirements set out in s 202(1)(a) and s 203 and, if it does not, the agreement is taken to include the model flexibility term prescribed by the FW Regulations. Section 201(1) requires the Commission to note in its approval decision if the model flexibility term is taken to be a term of the agreement.

[84] Clause 7, Individual flexibility arrangements of the Agreement does not meet the requirements of s 203 in the following respects:

•  the clause does not require the employer to ensure that the individual flexibility agreement (IFA) must be about permitted matters and must not include unlawful terms, as required by s 203(2)(b);

•  the clause provides for termination of IFAs by the employer or employee giving 13 weeks’ written notice, contrary to the requirement in s 203(6) that the term must allow an IFA to be terminated on no more than 28 days’ notice (or otherwise by agreement); and

•  the clause does not require the employer to provide the employee with a copy of the IFA within 14 days after the IFA is made, as required by s 203(7)(b);

[85] Accordingly the model flexibility term must be taken to be a term of the Agreement if approved.

[86] We note in passing that, in approving the Agreement, the Deputy President in the decision accepted undertakings rectifying the deficiencies we have identified in clause 7 of the Agreement rather than noting that the model flexibility term was a term of the Agreement. This was an error. Section 190 of the FW Act permits the acceptance of undertakings to address concerns only about the approval requirements in ss 186 and 187; it does not contemplate that undertakings may be accepted to address deficiencies with respect to the requirements for flexibility terms in s 203 as a substitute for the model flexibility term being taken to be a term of the agreement.

Undertakings

[87] Section 190 of the FW Act provides, in summary, that the Commission may approve an enterprise agreement notwithstanding that it has concerns that the agreement does not meet the approval requirements in ss 186 and 187 by accepting undertakings which address those concerns, provided that the undertakings are not likely to cause financial detriment to any employee covered by the change or result in substantial changes to the agreement. In respect of the concerns identified above, Hungry Jack’s continues to proffer the undertakings contained in its letter dated 20 September 2019 and signed by Ms McKie which were accepted by the Deputy President and appended to the decision (previous undertakings). These undertakings are reproduced in paragraph [20] above. In addition, Hungry Jack’s now proffers an additional undertaking (new undertaking) in response to the BOOT concern in paragraph [69](2) above, in the following terms:

“Under clause 18.1 of the Agreement, in addition to the weekly wages above in Clause 18, all penalty hours worked in accordance with clause 25.7, will attract an additional loading of 0.25% from the commencement of the Agreement.”

[88] We have sought the views of the bargaining representatives both as to the previous undertakings and the new undertakings, as required by s 190(4).

[89] We consider that our concerns that the Agreement does not meet the approval requirements of ss 186 and 187 are addressed by the previous undertakings and the new undertaking in the following way:

(1) Our concerns in respect of s 186(2)(a) and 186(3) are addressed by undertaking 3 of the previous undertakings (using the numbering system contained in the Hungry Jack’s letter of 20 September 2019 as set out in paragraph [20] above).

(2) Our concerns about the BOOT (s 186(2)(d)) are addressed in the following way:

(a) Previous undertakings 9 and 10 address the concern set out in paragraph [69](1) above.

(b) The new undertaking addresses the concern in paragraph [69](2) above.

(c) Previous undertaking 8 addresses the concern in paragraph [69](3) above.

(d) Previous undertaking 11 addresses the concern in paragraph [69](4) above.

(e) Previous undertaking 12 addresses the concern in paragraph [69](5) above.

(f) Previous undertaking 13 addresses the concern in paragraph [69](6) above.

(3) Our concern about the nominal expiry date (s 186(5)) is addressed by previous undertaking 2.

(4) Our concern about the disputes settlement term (s 186(6)) is met by previous undertaking 7.

[90] We are satisfied that acceptance of the undertakings identified above would not be likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. In relation to previous undertaking 3, that conclusion requires brief elaboration. In CEPU and AMWU v Main People Pty Ltd, 16 a Full Bench determined that the acceptance of an undertaking which had the effect of narrowing the coverage of an enterprise agreement was in error in that it would be likely to cause a significant change to the agreement. In this respect, the Full Bench said:

“[34] We consider that in two respects the Deputy President erred in approving the Agreement on the basis of the undertaking proposed by Main People. First, we consider that acceptance of paragraph 1 of the undertaking, which confined the coverage of the Agreement to work covered by the Metals Award, resulted in a significant change to the Agreement contrary to the requirement in s.190(3)(b) of the FW Act. It may be accepted that an undertaking which clarifies an ambiguous provision of an agreement for which approval is sought in accordance with the intention of the parties will not be likely to cause a significant change in that agreement. However, this was not a case of ambiguity. The breadth of the classifications in the Agreement, and the geographical scope of its coverage, made it apparent that it had application beyond work covered by the Metals Award. The first Full Bench made a clear finding to that effect in the Appeal Decision with which we agree.

[35] The scope of coverage of an enterprise agreement is one of its fundamental features. The coverage provision of an agreement serves to identify the class of persons who will be entitled to its benefits while it is in operation. The importance of an agreement’s coverage is signified by the fact that, under the FW Act, s.186(3) requires the group of employees covered by the agreement to be fairly chosen. For that reason an undertaking which purports to alter the coverage of an enterprise agreement by excluding classes of persons who, on the face of the agreement, would be covered by it, will always be likely to be a significant change.”

[91] In determining to accept undertaking 3, we do not intend to depart from the general principle established in Main People. However, as we have been at pains to describe earlier in our decision, this case involves unusual circumstances which place it far outside the normal position discussed in Main People in that the coverage clause of the Agreement does not reflect the coverage of the proposed agreement that was identified in the NERR and upon which the bargaining between Hungry Jack’s, the SDA and the AWU proceeded, nor does it reflect what was explained to the employees or the composition of the cohort of employees who were requested to vote to approve the Agreement. Undertaking 3 does no more than give effect to what was always intended to be the coverage of the Agreement.

[92] Accordingly we are prepared to approve the Agreement with the undertakings identified above.

Final comments, conclusions and orders

[93] We make a final comment about this matter. It is obviously highly regrettable that the Agreement may only now be approved almost a year after the application for its approval was lodged. That has been the result of a combination of matters occurring both prior to the lodgment of the application and in the conduct of the proceedings before the Commission. First, there was a lack of care in the drafting of the Agreement and the application. An enterprise agreement which prescribes the wages and employment conditions of over 16,000 employees for a period of 4 years is a major undertaking, exceeding in monetary value all but the largest commercial transactions. The appropriate legal and other resources should have been applied to ensure that the statutory requirements could be met without difficulty.

[94] Second, an excessive amount of time was devoted to dealing with the application for approval of the Agreement at first instance. As earlier stated, the application was in a position to be determined in early July 2019, had the file been carefully considered. Although the mistake in the name of the employer was only raised by Hungry Jack’s in September 2019, and then only in a submission rather than an application to amend the s 185 application, the error should not have gone unnoticed, and could have been corrected.

[95] Finally, the Deputy President fell into fundamental error by issuing a decision without reasons in circumstances where he clearly had not finished his consideration of the matter.

[96] In respect of the appeal, we order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The decision ([2019] FWCA 8492) is quashed.

[97] In respect of our re-determination of the application for approval of the Agreement, we have decided to approve the Agreement on the basis of an acceptance of the undertakings identified in paragraph [89] above. A signed and consolidated copy of those undertakings is attached to this decision as Annexure A.

[98] The SDA and the AWU have given notice under s 183 of the FW Act that they want the Agreement to cover them. In accordance with s 201(2) of the FW Act we note that the Agreement covers the SDA and the AWU. We also note, pursuant to s 201(1), that the model flexibility term is taken to be a term of the Agreement.

[99] The Agreement is approved and, in accordance with s 54 of the FW Act, will operate from 16 April 2020. In accordance with clause 2.1 of the Agreement as modified by the undertakings, the nominal expiry date of the Agreement is 9 April 2024.

VICE PRESIDENT

Appearances:

Mr J Cullinan on behalf of the Retail and Fast Food Workers Union Incorporated.
Mr W Friend QC with Ms S Burley on behalf of the Shop, Distributive and Allied Employees Association.
Mr Y Shariff of counsel with Mr T McDonald on behalf of Hungry Jack’s Australia Pty Ltd t/a Hungry Jack’s.

Hearing details:

2020.
Sydney (via telephone):
26 March.

Printed by authority of the Commonwealth Government Printer

<AE507725 PR717918>

Annexure A

 1   [2019] FWC 8492

 2   ACN 008 747 073

 3   ACN 065 643 343

 4   Transcript, 14 November 2019, PN24

 5   [2020] FWC 1314

 6   Tweed Valley Fruit Processors Pty Ltd v Ross (1996) 137 ALR 70, 65 IR 393 at 90-91; Re Australian Industry Group[2010] FWAFB 4337, 196 IR 125 at [11]; J.J. Richards & Sons Pty Ltd and another v Transport Workers' Union of Australia[2011] FWAFB 3377, 210 IR 231 at [9]

 7   See Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [10] per Moore J and at [44]-[48] per Marshall J; Soliman v University of Technology, Sydney [2012] FCAFC 146, 207 FCR 277, 226 IR 214 at [41]-[46]; Barach v University of New South Wales[2010] FWAFB 3307, 194 IR 259

 8 [2001] VSCA 167, 4 VR 28

 9 [1990] HCA 33, 170 CLR 321 at 366

 10   CEPU v Sustaining Works Pty Limited [2015] FWCFB 4422 at [30]

 11   [2019] FWCFB 1717 at [42]-[43]

 12   [2018] FWCFB 3610

 13   Ibid at [37]-[38] and [135]-[137]

 14   [2019] FWCFB 7599

 15   Ibid at [54]

 16   [2015] FWCFB 4467