Wanster Pty Ltd T/A Wok in a Box

[2014] FWCA 5813

FAIR WORK COMMISSION

DECISION

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

Wanster Pty Ltd T/A Wok in a Box
(AG2014/6625)

WANSTER PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 22 AUGUST 2014

Application for approval of the Wanster Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Wanster Pty Ltd 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] The Commission wrote to the Applicant via its representative, the National Retail Association (NRA), to request a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement when compared to the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. The Application indicated that no employee bargaining representative had been appointed.

[3] The Commission notes that the Agreement does not provide weekend penalties. Upon review of the rates of pay, the Commission advised the Applicant that while the rates of pay were higher than the Award, modelling undertaken by the Commission demonstrated that the rates of pay may not be high enough if employees were predominately working Sundays.

[4] The Applicant via the NRA has provided the Commission with a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement. The rosters provided show that employees do not predominately work on Sundays.

[5] Upon review of the rosters and calculations provided to the Commission I am satisfied that employees are better off overall under the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 29 August 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[8] 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

CaseChat Overview and Summary

Wanster Pty Ltd T/A Wok in a Box, an employer, sought approval for its 2014 enterprise agreement from the Fair Work Commission. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement was a "better off overall test" (BOOT) agreement, which requires that the employees be no worse off financially and, on balance, better off financially than they would be under the applicable award.

The primary legal issue was whether the enterprise agreement provided adequate protections and benefits to the employees, ensuring they were not worse off financially and, overall, better off than they would be under the applicable award. This required a detailed analysis of the financial terms and conditions set out in the agreement against those provided in the relevant award. The Commission had to consider if the agreement met the statutory requirements for approval, including the proper negotiation process and the extent to which it provided for minimum entitlements.

The Fair Work Commission found that the enterprise agreement provided for a mix of financial and non-financial benefits that were comparable to, or better than, those provided under the relevant award. The Commission determined that the agreement did not result in employees being worse off financially and, on balance, the employees were better off due to the additional benefits provided. The Commission was satisfied that the negotiation process was appropriate and the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The Commission approved the Wanster Pty Ltd Enterprise Agreement 2014, finding it met all the necessary criteria for a BOOT agreement. The decision was based on the comprehensive benefits provided to employees, ensuring they were not worse off financially and, on balance, better off than they would be under the applicable award. This approval allows the enterprise agreement to be formally registered and enforced.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established