DECISION

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

Schnitz HR Pty Ltd T/A Schnitz
(AG2015/5032)

SCHNITZ HR ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 9 NOVEMBER 2015

Application for approval of the Schnitz HR Enterprise Agreement 2015

[1] An application has been made by Schnitz HR Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Schnitz HR Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement, and covers all employees of the applicant other than senior executives.

[2] The Fair Work Commission (the Commission) wrote to the applicant, via its legal representative Mr David Price on a number of occasions with respect to concerns with the Agreement. In particular, the concerns related to:

1. Dispute resolution term not meeting the requirements under s.186(6) of the Act;
2. Consultation term not meeting the requirements under s.205(1)(A);
3. Permitted deductions not meeting the requirements of s.324; and
4. Whether the Agreement satisfied the better off overall test as per s.186 of the Act.

[3] Final undertakings addressing the Commission’s concerns were received from the applicant on 30 October 2015.

Dispute resolution term

[4] The consultation term at clause 30 of the Agreement does not meet the requirements of s.186(6) of the Act, the clause does not allow for the settling of disputes about any matters arising under the Agreement or permit employee representation at all stages of the procedure.

[5] The model dispute resolution term at Schedule 6.1 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure A of this decision.

Consultation Term

[6] The consultation term at clause 32 of the Agreement does not meet the requirements of s.205(1A) of the Act, the clause does not provide specific consultation requirements with respect to changes to regular rosters or ordinary hours.

[7] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model consultation term is attached at Annexure B of this decision.

Permitted deductions

[8] Clause 28(d) of the Agreement allows the employer to deduct money from an employee’s entitlements upon termination of employment for items that have not been returned to the employer. These deductions may not be permitted deductions meeting the requirements of s. 324 the Act. The applicant was advised that the relevant items listed in the clause may be of no effect as per ss. 253 and 326 of the Act.

Better Off Overall Test (BOOT)

[9] The applicant declared in its statutory declaration that the Agreement does not provide for any shift penalties, weekend penalties or annual leave loading, as well (as a reduced public holiday loading),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCA 7569
Decision Date: 9 NOVEMBER 2015

CaseChat Overview and Summary

Schnitz HR Pty Ltd, trading as Schnitz, applied to the Fair Work Commission for the approval of the Schnitz HR Enterprise Agreement 2015. The application was brought by the employer, Schnitz HR Pty Ltd, seeking the Commission's approval of the agreement reached with its employees. The nature of the dispute centred around the terms of the proposed agreement and whether it complied with the relevant provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the Schnitz HR Enterprise Agreement 2015 met the requirements for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement provided for the terms and conditions of employment of the employees in a fair and reasonable manner, and whether it complied with the procedural requirements set out in the Act. This included an assessment of the agreement's provisions on wages, hours of work, and other conditions of employment, as well as the process by which the agreement was negotiated and agreed upon.

In reaching its decision, the Commission considered the evidence presented by both parties and the applicable legal principles. It examined the provisions of the agreement to ensure they did not undermine the minimum standards set out in the National Employment Standards and other relevant awards. The Commission also evaluated the process by which the agreement was negotiated to confirm it was done in good faith and involved genuine bargaining. After reviewing the evidence and applying the relevant legal principles, the Commission was satisfied that the Schnitz HR Enterprise Agreement 2015 met the necessary criteria for approval. The agreement was therefore approved, and the Fair Work Commission issued its decision accordingly.

Orders