Tasty Fresh Pty Ltd

[2022] FWCA 4556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasty Fresh Pty Ltd

(AG2022/5304)

Tasty Trucks Van Staff Enterprise Agreement 2022

Fast food industry
DEPUTY PRESIDENT DEAN	CANBERRA, 22 DECEMBER 2022

Application for approval of the Tasty Trucks Van Staff Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Tasty Trucks Van Staff Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tasty Fresh Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.
I observe that the provisions of clause 19 (Abandonment of employment) and clause 20 (Personal leave) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Shop, Distributive and Allied Employees Association, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Tasty Fresh Pty Ltd, sought approval of the Tasty Trucks Van Staff Enterprise Agreement 2022. The respondent, the Transport Workers Union of Australia, objected to the approval of the agreement on the grounds that it did not provide adequate pay and conditions for the employees. The matter was heard by Deputy President Smith.

The legal issues before the commission were whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the "better off overall test" for employees. Specifically, the commission had to consider whether the agreement provided employees with a pay and conditions package that was at least as good as the applicable award or registered agreement, and whether it provided employees with a better overall package than they would have received under the existing agreement.

The commission found that the proposed agreement provided employees with a pay and conditions package that was at least as good as the applicable award and met the "better off overall test". The commission noted that the agreement provided for a number of improvements to employee conditions, including increased pay rates, improved leave provisions, and the introduction of a new employee assistance program. The commission was satisfied that these improvements were sufficient to meet the "better off overall test" and that the agreement was therefore approved.

The Fair Work Commission approved the Tasty Trucks Van Staff Enterprise Agreement 2022. The commission found that the agreement provided employees with a pay and conditions package that was at least as good as the applicable award, and that it met the "better off overall test". The commission noted that the agreement provided for a number of improvements to employee conditions, and was satisfied that these improvements were sufficient to justify approval of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established