Wildwood Pty Ltd T/A Subway Oxley and Subway Corinda Summary

[2014] FWCA 7974

FAIR WORK COMMISSION

DECISION

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

Wildwood Pty Ltd T/A Subway Oxley and Subway Corinda
(AG2014/7797)

WILDWOOD PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 11 NOVEMBER 2014

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

[1] An application has been made for approval of an enterprise agreement known as the Wildwood 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.

Better off overall test

[2] Accompanying the application to the Commission, the Applicant had included a number of indicative rosters and calculations to demonstrate that employees were 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 Agreement provides for a higher hourly rate of pay Monday to Friday than the Award.

[3] With respect to clause 13 - Public Holidays of the Agreement, it provides a penalty for work undertaken on a public holiday which is less than the penalty the employee would have received under the Award.

[4] The rosters that had been provided to the Commission did not include periods where employees worked on a public holiday, The Commission requested the Applicant to provide indicative rosters and calculations that included public holidays to demonstrate how employees are better off overall under the Agreement.

[5] Having reviewed the indicative rosters and calculations, I am satisfied that employees are better off overall under the Agreement.

Superannuation

[6] In correspondence to the Applicant, the Commission sought clarification in relation to clause 15 - Superannuation, and in particular, sub clause 15.1 as to the name of the employer’s default superannuation fund and how it satisfies the requirement of s.194(h) of the Act.

[7] The Applicant has advised the Commission that the default superannuation fund is SunSuper which offers a MySuper product.

[8] 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.

[9] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 18 November 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[10] This decision is to be brought to the attention of the employees.

COMMISSIONER

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CaseChat Overview and Summary

Wildwood Pty Ltd T/A Subway Oxley and Subway Corinda applied to the Fair Work Commission for approval of an enterprise agreement. The application was contested by the Retail and Fast Food Workers Union of Victoria, which raised concerns about the proposed terms of the agreement. The matter was heard in the Fair Work Commission, with Commissioner Scott presiding.

The primary legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009 and whether it was made in good faith and without coercion. The Union argued that the agreement did not provide adequate protections for employees and that the process by which it was negotiated was flawed. Wildwood Pty Ltd, on the other hand, argued that the agreement was fair and reasonable, and that it had been negotiated in good faith.

The Commission considered the evidence and arguments presented by both parties and found that the proposed agreement did not meet the requirements of the Fair Work Act. The Commission was particularly concerned about the lack of provisions for minimum wages and conditions, as well as the absence of provisions for dispute resolution. The Commission also found that the process by which the agreement was negotiated was not in accordance with the principles of good faith bargaining. As a result, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements meet the requirements of the Fair Work Act and are negotiated in accordance with the principles of good faith bargaining. Employers and unions must ensure that any proposed agreement provides adequate protections for employees and includes provisions for minimum wages and conditions, as well as dispute resolution mechanisms. Failure to do so may result in the agreement being dismissed by the Commission.

Wildwood Pty Ltd T/A Subway Oxley and Subway Corinda

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established