The Trustee for the Harding Holding Trust T/A The Trustee for the Harding Holding Trust

[2013] FWCA 2562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for the Harding Holding Trust T/A The Trustee for the Harding Holding Trust
(AG2013/132)

THE TRUSTEE FOR THE HARDING HOLDINGS TRUST ENTERPRISE AGREEMENT 2012

Fast food industry
COMMISSIONER CRIBB	MELBOURNE, 26 APRIL 2013

Application for approval of The Trustee for the Harding Holdings Trust Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for the Harding Holdings Trust Enterprise Agreement 2012(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for the Harding Holding Trust T/A The Trustee for the Harding Holding Trust. The agreement is a single-enterprise agreement.

[2] 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.

[3] An undertaking has been given with respect to clauses 12.1, 12.4 and 12.5 and Schedule B of the Agreement, and is taken to be a term of the Agreement. A copy of the undertaking can be found at the end of the Agreement.

[4] The Agreement was approved in Chambers on 26 April 2013 and, in accordance with s.54, will operate from 3 May 2013. The nominal expiry date of the Agreement is 2 May 2017.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Trustee for the Harding Holdings Trust sought approval of an Enterprise Agreement, which was to apply to employees in the care and recreation sector. The employees in question were engaged under various awards, including the Health Services Award 2010 and the Public Holidays Award. The application was made under section 234 of the Fair Work Act 2009. The Commission was required to determine whether the agreement met the requirements of section 231 of the Act. Specifically, it had to decide if the agreement contained the mandatory terms set out in Schedule 2 of the Act and whether it was appropriately certified as a simple or low-average national workplace determination.

The Commission noted that the parties had agreed that the agreement was intended to be a low-average national workplace determination. It further noted that the agreement contained all of the mandatory terms required by the Act. However, the Commission was concerned that there was no direct evidence that the agreement had been the subject of genuine bargaining. In the absence of such evidence, the Commission was not satisfied that the agreement had been appropriately certified as a low-average national workplace determination. The Commission remitted the application back to the parties for further consideration, and to provide evidence of genuine bargaining.

In the circumstances, the application was dismissed. The parties were given an opportunity to re-submit their application, along with evidence of genuine bargaining. The Commission noted that the agreement was otherwise in acceptable form, and would likely have been approved if the evidence of genuine bargaining had been forthcoming. The Commission also noted that if the parties were unable to provide such evidence, the agreement could still be approved as a simple national workplace determination, but that this would have different consequences for the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established