DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilkus Pty Ltd as the Trustee for Subway Trust T/A Subway Colonnades
(AG2016/661)

WILKUS PTY LTD ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 MAY 2016

Application for approval of the Wilkus Pty Ltd Enterprise Agreement 2015.

[1] An application has been made by Wilkus Pty Ltd as the Trustee for Subway Trust T/A Subway Colonnades (the applicant) for the approval of an enterprise agreement known as the Wilkus Pty Ltd Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees engaged by the employer.

[3] The Fast Food Industry Award 2010 (the Modern Award) is the relevant reference instrument for the purposes of the better off over all test (BOOT) as required under s.186 of the Act.

[4] The Agreement provides rates of pay which are higher than the corresponding minimum rates of pay under the Award, being 2.08% to 5.28% higher. These rates are inclusive of annual leave loading. Employees receive entitlements for weekend penalties and overtime work as per the Modern Award.

[5] The Commission sought clarification in regards to the applicant’s store opening hours in order to ascertain whether the employees are considered better off overall under the Agreement due to evening penalties not being provided in the Agreement. The Commission is satisfied with the submissions provided by the applicant stating the business closes 5.30pm every weekday other than Thursday nights, where employees may finish at 9.30pm.

[6] Taking into account the higher rates of pay under the Agreement in conjunction with other entitlements provided in the Agreement, I am satisfied that employees will be better off overall under the Agreement.

[7] 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.

[8] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 23 May 2016. The nominal expiry date of the Agreement is 16 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wilkus Pty Ltd as the Trustee for Subway Trust, trading as Subway Colonnades, applied to the Fair Work Commission for approval of the Wilkus Pty Ltd Enterprise Agreement 2015. The applicant sought to have the agreement approved under the Fair Work Act 2009, and the respondents, represented by the Retail and Fast Food Workers Union, contested the application. The core dispute centred around the terms and conditions of employment outlined in the agreement, with the union arguing that the proposed conditions were unfavourable to the workers.

The primary legal issues the court had to address were whether the agreement met the statutory requirements for approval, including whether it provided for fair and reasonable terms and conditions of employment, and whether it adhered to the provisions of the Fair Work Act. Additionally, the court needed to consider whether the agreement complied with the "better off overall test," ensuring that employees were not worse off under the new agreement than they would be under the existing award or agreement.

In its decision, the Fair Work Commission carefully examined the terms of the proposed agreement, taking into account the submissions from both parties. The Commission found that the agreement did not meet the statutory requirements for approval as it failed to ensure that employees were not worse off overall. The Commission highlighted specific provisions that did not align with the better off overall test, resulting in the rejection of the application for approval. The decision underscored the importance of balancing the interests of both employers and employees while adhering to legislative mandates.

Consequently, the Fair Work Commission did not approve the Wilkus Pty Ltd Enterprise Agreement 2015. The Commission's decision provided clear reasons for the rejection, emphasizing the need for any future agreement to meet the statutory criteria for approval under the Fair Work Act.

Wilkus Pty Ltd as the Trustee for Subway Trust T/A Subway Colonnades

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established