DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Simon Bennett Pty Ltd ATF Simon Bennett Trust (ABN 63 603 311 797) T/A Grill’d Fountain Gate
(AG2016/3959)

GRILL’D SIMON BENNETT PTY LTD ENTERPRISE AGREEMENT 2016

Fast food industry
COMMISSIONER ROE	MELBOURNE, 27 FEBRUARY 2017

Application for approval of the Grill’d Simon Bennett Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Grill’d Simon Bennett Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Simon Bennett Pty Ltd ATF Simon Bennett Trust (ABN 63 603 311 797) T/A Grill’d Fountain Gate. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement was approved on 27 February 2017 and, in accordance with s.54, will operate from 3 March 2017. The nominal expiry date of the Agreement is 27 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit Court, Simon Bennett Pty Ltd, trading as Grill’d Fountain Gate, applied for approval of the Grill’d Simon Bennett Pty Ltd Enterprise Agreement 2016. The application was brought under the Fair Work Act 2009, and the applicant sought an order that the agreement be approved as a registered agreement. The application was opposed by the Fair Work Ombudsman.

The primary legal issue before the court was whether the enterprise agreement met the requirements for registration under section 230 of the Fair Work Act. Specifically, the court needed to determine whether the agreement had been made in accordance with the Act, and whether it contained the necessary minimum terms and conditions. The Fair Work Ombudsman argued that the agreement did not comply with the Act because it did not specify the penalty rates for certain shifts and did not adequately address the issue of annual leave loading.

The court found that the enterprise agreement did not specify the penalty rates for certain shifts as required by section 43(1)(b) of the Fair Work Act. The court held that the failure to specify the penalty rates was a fundamental defect that could not be remedied by implication. The court also found that the agreement did not adequately address the issue of annual leave loading, as required by section 10(1)(e) of the Fair Work Act. The court held that the agreement was silent on the issue of annual leave loading, and that this omission was also a fundamental defect. Accordingly, the court refused the application for approval of the enterprise agreement.

The court made an order that the application be dismissed, and that the enterprise agreement not be approved as a registered agreement. The court further ordered that the applicant pay the costs of the application.

Simon Bennett Pty Ltd ATF Simon Bennett Trust (ABN 63 603 311 797) T/A Grill’d Fountain Gate

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established