Wok in a Box Holdings Pty Ltd T/A Wok in a Box (Noranda)

[2014] FWCA 5815

FAIR WORK COMMISSION

DECISION

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

Wok in a Box Holdings Pty Ltd T/A Wok in a Box (Noranda)
(AG2014/6612)

WOK IN A BOX HOLDINGS PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 22 AUGUST 2014

Application for approval of the Wok In a Box Holdings Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Wok In a Box Holdings 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

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CaseChat Overview and Summary

Wok in a Box Holdings Pty Ltd T/A Wok in a Box (Noranda) was before the Fair Work Commission in an application for the approval of the Enterprise Agreement. The applicant, Wok in a Box, sought to have the agreement approved under section 234 of the Fair Work Act 2009. The agreement was for the employees of Wok in a Box who were employed under a franchise agreement with Noranda Franchise Systems Pty Ltd.

The legal issues before the Commission included whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it was made in good faith. The Commission considered whether the agreement provided for the minimum entitlements and whether it had been properly certified as a simple or low-paid agreement. Additionally, the Commission had to determine whether the agreement was in the best interests of the employees.

The Fair Work Commission approved the agreement, finding that it met the statutory requirements and was made in good faith. The Commission found that the agreement provided for the minimum entitlements and that it was appropriately certified as a simple agreement. The Commission concluded that the agreement was in the best interests of the employees, given the nature of the franchise agreement and the specific circumstances of the enterprise.

The final order of the Commission was that the Enterprise Agreement be approved, with the effective date being the date of the application. The approval was subject to the agreement being registered by the Commission and the parties providing the necessary documentation. The Commission also noted that the agreement would remain in effect until it was terminated, varied, or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established