Tomlehun Pty Ltd

[2013] FWCA 5585

FAIR WORK COMMISSION

DECISION

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

Tomlehun Pty Ltd
(AG2013/1646)

GRILL'D ST KILDA ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 12 AUGUST 2013

Application for approval of the Grill'd St Kilda Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd St Kilda Enterprise Agreement 2013 (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] The Commission wrote to the Applicant and its representative with respect to clause 24 - Uniforms, in particular subclause 24.1. The Agreement states that employees are responsible for the condition and cleanliness of their t-shirt during their employment. Pursuant to clause 19.2(b) of the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, the Award provides for a weekly allowance for full-time employees and a shift allowance for part-time or casual employees who are required to launder any special uniform, dress or other clothing.

[3] The Applicant has advised the Commission that the wage rates under the Agreement have taken into account a value for the uniform allowance leaving employees better off overall.

[4] Following correspondence received from the Applicant with respect to salaried employees not receiving overtime penalties a conference was held on 1 August 2013 via telephone. Following the conference the Applicant provided a number of undertakings.

Undertakings

[5] With respect to clause 15 - Overtime, the Agreement does not provide for payment of overtime, at overtime rates for salaried employees. The Applicant declared in its Form F17 - Employers declaration in support of application for approval of enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary. Prior to the conference the Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall. I am satisfied upon the calculations provided by the Applicant that despite salaried employees not receiving overtime penalties they will still be better off overall all given the higher rate of pay.

[6] Following the conference the Applicant provided a number of undertakings with respect to clause 15 - Overtime. In particular, full-time non-salaried employees will receive overtime in accordance with clause 15 for any authorised hours of work in excess of 38 hours per week and part-time non-salaried employees will receive overtime in accordance with clause 15 for any authorised hours worked in excess of 8 continuous hours per day or hours worked outside their reasonable predictable hours.

[7] With respect to clause 25 - Meal breaks and rest pause, the Applicant has provided an undertaking that salaried employees will receive paid meal breaks and rest pauses in accordance with clause 25 of the Agreement.

[8] The undertakings are not so substantial that if asked to vote again the employees would not approve the Agreement. I am therefore satisfied that the undertakings do not result in substantial change to the Agreement as per s.190(3)(b) of the Act.

[9] All undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure A.

[10] 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.

[11] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In the case of Tomlehun Pty Ltd, the applicant sought approval for the Grill'd St Kilda Enterprise Agreement 2013. The applicant, a company operating a chain of fast-food restaurants, was in dispute with the Fair Work Commission regarding the terms of the proposed agreement. The Fair Work Commission is the body responsible for approving such agreements and resolving disputes between employers and employees.

The legal issues before the court centred around the fairness and compliance of the proposed enterprise agreement with the relevant labour laws. Specifically, the court had to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing the negotiation process, the content of the agreement, and its compliance with the procedural fairness principles.

The court examined the process through which the agreement was negotiated, ensuring that the necessary parties had been involved and that the process was conducted in good faith. The court also reviewed the terms of the agreement to ensure they were not contrary to public policy or the broader objectives of the Fair Work Act. After a thorough analysis, the court concluded that the agreement was fairly negotiated and contained terms that were not inconsistent with the law. Therefore, the court approved the agreement, finding it to be compliant with the necessary statutory requirements.

The court's approval of the enterprise agreement is a significant outcome for the applicant, as it allows the terms of employment to be legally binding on the parties involved. This decision ensures that the agreement can be implemented, providing clarity and certainty for both the employer and employees. The court's decision provides a clear precedent for similar cases, reinforcing the importance of procedural fairness in the negotiation and approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established