The Cake Syndicate Pty Ltd T/A The Cake Syndicate Pty Ltd (Trading As Susan Day Cakes Pty Ltd)

[2024] FWCA 4098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Cake Syndicate Pty Ltd T/A The Cake Syndicate Pty Ltd (Trading As Susan Day Cakes Pty Ltd)

(AG2024/3617)

THE CAKE SYNDICATE PTY LTD (TRADING AS SUSAN DAY CAKES) ENTERPRISE AGREEMENT 2024 - 2027

Food, beverages and tobacco manufacturing industry
COMMISSIONER MIRABELLA	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the The Cake Syndicate Pty Ltd (Trading as Susan Day Cakes Pty Ltd) Enterprise Agreement 2024 - 2027

The Cake Syndicate Pty Ltd Trading As Susan Day Cakes Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as The Cake Syndicate Pty Ltd (trading as Susan Day Cakes) Enterprise Agreement 2024 - 2027 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 19 March 2024 and the Agreement was made on 30 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 10: Casual conversion

· Clause 24.10: Abandonment of employment

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Food, Beverage and Tobacco Manufacturing Award 2020 is taken to be a term of the Agreement.

The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

The Agreement was approved on 25 November 2024 and, in accordance with s.54, will operate from 2 December 2024. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Cake Syndicate Pty Ltd (Trading as Susan Day Cakes Pty Ltd) recently approached the Fair Work Commission to seek approval for their proposed Enterprise Agreement for the years 2024 to 2027. The application was made under the Fair Work Act 2009, and the respondent, the Australian Council of Trade Unions (ACTU), was given the opportunity to make submissions. The primary dispute centred around the terms and conditions of employment, including wages, hours, and other workplace rights of the employees of The Cake Syndicate Pty Ltd.

The key legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act, including ensuring fairness and protecting the rights of employees. The Commission had to consider whether the agreement provided for a safety net of minimum entitlements, whether it allowed for genuine flexibility, and whether it ensured fairness to both employers and employees. Additionally, the Commission had to determine if the agreement adhered to the principles of good faith bargaining and if it met the statutory obligations of the enterprise agreement provisions.

In delivering its decision, the Fair Work Commission found that the proposed agreement met all the necessary statutory requirements. The agreement provided for a safety net of minimum entitlements, ensured fairness, and allowed for flexibility where necessary. The Commission was satisfied that the agreement was the product of genuine and good faith bargaining between the parties. Consequently, the Commission approved the Enterprise Agreement 2024-2027 for The Cake Syndicate Pty Ltd (Trading as Susan Day Cakes Pty Ltd), confirming that it complied with the Fair Work Act and was in the best interests of the employees and the employer.

The final orders of the Commission were that the proposed Enterprise Agreement be approved and registered under the Fair Work Act. This decision allows The Cake Syndicate Pty Ltd to implement the agreed terms and conditions with the assurance that it meets the legal standards required for enterprise agreements in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established