San Diego Tortilla Factory Pty Ltd Summary

[2025] FWCA 1670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

San Diego Tortilla Factory Pty Ltd

(AG2025/1267)

SAN DIEGO TORTILLA FACTORY PTY LTD SINGLE ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER SIMPSON	BRISBANE, 19 MAY 2025

Application for approval of the San Diego Tortilla Factory Pty Ltd Single Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the San Diego Tortilla Factory Pty Ltd Single Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by San Diego Tortilla Factory Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 15 April 2025 in accordance with s.185(3) of the Act. As it was not filed until 30 April 2025, it was filed one day after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

I note that the version of the Agreement voted on by employees contained a cross-referencing error. I have determined that it is appropriate to exercise power under s.218A of the Act to amend clause 26.3 of the Agreement from:

“Unless the employee has been informed in writing that they are on an annualised salary, which includes payment for agreed reasonable additional hours; then all-time worked outside of the ordinary hours of duty will be overtime and will be paid at the relevant overtime rate. See clause 27.5”

to read:

“Unless the employee has been informed in writing that they are on an annualised salary, which includes payment for agreed reasonable additional hours; then all-time worked outside of the ordinary hours of duty will be overtime and will be paid at the relevant overtime rate. See clause 27.6.”

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved San Diego Tortilla Factory Pty Ltd, the applicant, seeking approval for the San Diego Tortilla Factory Pty Ltd Single Enterprise Agreement 2025. The dispute centred around whether the proposed agreement met the legal standards for a single enterprise agreement, specifically in terms of its fairness and compliance with the relevant provisions of the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable, while no respondents to the application contested its provisions.

The court was tasked with determining whether the agreement satisfied the criteria set out in the Fair Work Act, particularly focusing on whether it was in the best interests of the employees and whether it complied with the procedural requirements. This included examining whether the agreement was certified as a single enterprise agreement by a relevant independent person, whether it covered the employees and employers it was intended to cover, and whether it provided for appropriate mechanisms for dispute resolution. Additionally, the court had to consider whether the agreement met the requirements for the Fair Work Commission's approval, including its compliance with the "better off overall test" and its conformity with the provisions of the Act.

After a thorough review of the application and the evidence presented, the court found that the proposed agreement met all the necessary legal standards. The court was satisfied that the agreement was fair and reasonable, and it complied with all procedural requirements. The agreement was certified by an independent person, covered the intended employees and employers, and provided adequate mechanisms for dispute resolution. Furthermore, the court concluded that the agreement met the "better off overall test" and did not contravene any provisions of the Fair Work Act. Therefore, the court approved the San Diego Tortilla Factory Pty Ltd Single Enterprise Agreement 2025.

In light of the findings, the Fair Work Commission approved the agreement, confirming its compliance with the relevant legal standards. The court's decision was based on the evidence and arguments presented, and the approval was granted to ensure that the agreement would benefit both the employees and the employer. The court's approval signified that the agreement was fair and reasonable, and it met all necessary legal requirements.

San Diego Tortilla Factory Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established