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

[2024] FWCA 4098

[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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

1. 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.

1. 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.

1. 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.

1. 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

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Annexure A