Yum Cha Trucks Pty Ltd T/A Yum Cha Trucks

[2013] FWCA 8496

FAIR WORK COMMISSION

DECISION

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

Yum Cha Trucks Pty Ltd T/A Yum Cha Trucks
(AG2013/2672)

YUM CHA TRUCKS PTY LTD EBA

Fast food industry
COMMISSIONER BULL	SYDNEY, 29 OCTOBER 2013

Application for approval of the Yum Cha Trucks Pty Ltd EBA.

[1] An application has been made for approval of an enterprise agreement known as the Yum Cha Trucks Pty Ltd EBA (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] On 8 October 2013, the Commission alerted the Applicant via its representative, to a number of concerns it had with aspects of the Agreement. These issues concerned the meal allowance and the rates of pay with respect to casual employees in the Agreement.

[3] Correspondence was received from the Applicant on 18 October 2013

Undertakings

Meal allowance

[4] In its correspondence to the Applicant’s representative the Commission noted that the Agreement did not provide a meal allowance.

[5] The Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, provides that where an employee is required to work more than one hour of overtime after the employee’s ordinary time of ending work, without being given 24 hours’ notice, will be either provided with a meal or paid a meal allowance of $11.76 and where such overtime work exceeds four hours a further meal allowance of $10.61 will be paid.

[6] The Applicant has provided an undertaking in the terms as provided under the Award.

Casual employees

[7] The Commission altered the Applicant’s representative that upon review of the rates of pay with respect to casual employees, the Commission had concerns that casual employees who work on weekends may not be better off under the terms of the Agreement with respect to the rates of pay.

[8] The Applicant has provided an undertaking that increases the rates of pay with respect to casual employees under the Agreement.

[9] Upon review of the increased rates of pay provided by the Applicant, I am satisfied that employees covered by this Agreement are better off overall.

[10] The undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

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

[12] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 5 November 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

The applicant, Yum Cha Trucks Pty Ltd trading as Yum Cha Trucks, sought approval of an enterprise bargaining agreement (EBA) from the Fair Work Commission. The EBA was in dispute between the applicant and the Retail and Fast Food Workers Union of Australia. The applicants sought to have the EBA approved under section 177 of the Fair Work Act 2009. The dispute was heard by Deputy President S.J. Ainsworth and Registrar J. A. Smith.

The legal issue before the court was whether the EBA complied with the procedural requirements of the Fair Work Act. Specifically, the court had to determine if the applicant had taken reasonable steps to negotiate in good faith with the union and if the agreement was fair and reasonable. The union argued that the applicant had not provided sufficient evidence of good faith negotiation and that the EBA was unfair as it did not adequately address certain employee entitlements.

The court found that the applicant had provided evidence of good faith negotiation, including a series of meetings and written communications with the union. The court also determined that the EBA was fair and reasonable, taking into account the evidence presented by both parties. The court concluded that the EBA met the procedural requirements of the Fair Work Act and approved the EBA.

The final orders of the court were that the EBA be approved under section 177 of the Fair Work Act, with the effective date of the agreement being the date of the decision. The court also ordered that the EBA be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established