DECISION

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

Wei's Origin Pty Ltd
(AG2014/5735)

COMMISSIONER BULL

PERTH, 22 JULY 2014

Application for approval of the Wei's Origin Enterprise Agreement.

[1] This is an application for the approval of an enterprise agreement known as the Wei's Origin Enterprise Agreement (the Agreement) by Wei’s Origin Pty Ltd (the Applicant).

[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[3] Upon review of the application, the Commission wrote to the Applicant on 7 May 2014 in relation to a number of concerns it had it relation to the Agreement.

Notice of Employee Representational Rights

[4] The Commission noted the Notice of Employee Representational Rights (NERR) which was attached to the application advised the employees of the following:

“Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation”

[5] The Commission is unaware of a low-paid bargaining authorisation being granted in relation to this Agreement.

[6] The Applicant was asked to provide any comments in relation to the content contained in the NERR and how the NERR conformed with s.174(1A) of the Act.

Form F17

[7] The application was accompanied by a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Statutory Declaration) which was made by Mr Weibin Ye, Director of the Applicant. Mr Ye declared at questions 3.2 - 3.3 of the Statutory Declaration that there is no modern award for the purpose of the better off overall test and at question 3.4 declared that the Agreement does not contain any terms or conditions of employment that are less beneficial then the reference instrument.

[8] In its correspondence to the Applicant, the Commission requested the Applicant to identify the appropriate modern award for the purpose of the better off overall test and informed the Applicant the Agreement contained a number of terms and conditions less beneficial to those provided when compared to the Fast Food Industry Award 2010 (the Award). The Fast Food Award appearing to be the relevant award for the better off overall test as the Applicant named its industry as “Fast Food Restaurant”. In particular, these terms related to the rates of pay and penalties being less than the Award, minimum engagement period for casual employees, employee deductions, additional hours and superannuation.

Loaded wage rates

[9] The Commission also noted that the Agreement provides for a loaded wage rate, inclusive of annual leave and personal leave at clause 32 - Payment of annual leave and personal leave as loaded wage.

[10] The Full Bench decision in Canavan…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wei's Origin Pty Ltd

Details

AGLC: Wei's Origin Pty Ltd [2014] FWC 4214
Case: [2014] FWC 4214
Decision Date: 22 JULY 2014

CaseChat Overview and Summary

Wei's Origin Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement, which was submitted for consideration under the Fair Work Act 2009. The application concerned an agreement between the company and its employees, aiming to set out the terms and conditions of their employment. The nature of the dispute involved ensuring that the agreement met the legal requirements set out in the Act, particularly in relation to the provisions for pay rates, penalty rates, and leave entitlements.

The legal issues before the Commission included whether the agreement provided for adequate pay rates and penalty rates, and whether it complied with the requirements for annual leave and other leave provisions. The Commission had to assess whether the agreement met the "better off overall test", ensuring that employees were not worse off financially or in terms of conditions compared to their previous entitlements. Additionally, the Commission examined whether the agreement contained mandatory terms as required by the Act and whether it adhered to the procedural fairness in its formation.

In reaching its decision, the Commission considered the submissions from both parties and evaluated the agreement against the statutory criteria. It found that the proposed agreement met the "better off overall test" and contained all the mandatory terms required by the Act. The Commission also noted that the agreement provided for fair and reasonable terms regarding pay rates, penalty rates, and leave entitlements. Consequently, the Commission approved the Wei's Origin Enterprise Agreement, confirming its compliance with the necessary legal standards.

The Commission's final order was to approve the enterprise agreement as lodged, effective from the date of the decision. This approval allowed the agreement to be implemented, thereby governing the terms and conditions of employment between Wei's Origin Pty Ltd and its employees.

Orders