DECISION

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

TeamHux Pty Ltd T/A Huxtaburger
(AG2014/8190)

HUXTABURGER ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 11 DECEMBER 2014

Application for approval of the Huxtaburger Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Huxtaburger Enterprise Agreement 2014 (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.

[2] On 2 December 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to employees who receive a salary under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 9 December 2014.

[4] With respect to clause 11 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary. Further, the salaries contained in the Agreement are inclusive of all loadings, other than those provided for in the Agreement.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite the salaries being inclusive of loadings and not receiving overtime, entitlements that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant currently has three stores in Victoria and each store currently engages employees as store managers and assistant store managers (salaried employees).

[7] The Applicant has provided calculations based on salaried employees working on average 2.6 to 3.19 hours of overtime each week. I am satisfied upon review of the indicative rosters and calculations provided by the Applicant that despite the salaries being inclusive of loadings and salaried employee’s not receiving overtime they will still be better off overall given the higher rate of pay under the Agreement when compared to the Award.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 18 December 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[10] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of TeamHux Pty Ltd trading as Huxtaburger, the Fair Work Commission was presented with an application for the approval of the Huxtaburger Enterprise Agreement 2014. The applicant, TeamHux Pty Ltd, sought to formalise the terms of employment for its employees under the proposed agreement. The application arose in the context of industrial relations, with concerns about the fairness and compliance of the agreement with the applicable legal standards.

The primary legal issues before the commission included whether the agreement had been made in accordance with the requirements of the Fair Work Act 2009, whether it was fair and reasonable in all its terms, and if it appropriately balanced the interests of both the employer and the employees. A significant aspect of the dispute was whether the agreement adequately provided for the employees' entitlements, working conditions, and dispute resolution mechanisms. The commission also had to consider if the agreement met the criteria for "single interest" and "genuine agreement" as stipulated by the Fair Work Act.

Upon reviewing the application, the commission assessed the process through which the agreement was negotiated, the substantive terms of the agreement, and the evidence provided by both parties. The commission found that the agreement had been made in good faith and was fair and reasonable. It determined that the negotiation process was transparent and that the employees had been adequately represented. The commission further concluded that the agreement appropriately balanced the interests of the employer and the employees, meeting all statutory requirements. As such, the commission approved the Huxtaburger Enterprise Agreement 2014, recognising it as a valid and enforceable enterprise agreement.

In approving the agreement, the commission ordered that the Huxtaburger Enterprise Agreement 2014 be registered and enforceable from the date of the decision. The agreement was to apply to the employees of TeamHux Pty Ltd, governing their terms and conditions of employment as per the negotiated terms.

TeamHux Pty Ltd T/A Huxtaburger

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established