ENTERPRISE AGREEMENTS – approval – undertakings – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to dismiss an application for approval of 7-Eleven Fuel and Non-Fuel Enterprise Agreement 2015 – agreement proposed to apply to the appellant and other employers operating 7-Eleven outlets – decision of Hamilton DP and Lawrence DP – on appeal Shop, Distributive and Allied Employees Association (SDA) notified Full Bench that they had an interest in the matter – appellant objected to SDA putting submissions – found Commission entitled to inform itself as it sees appropriate – SDA raised a number of matters not raised by the appellant which were appropriate to consider – SDA heard – appellant submitted natural justice breached – submitted errors occurred in the application of the better off overall test and that calculations set out in the decision at Annexure A used only the General Retail Industry Award 2010 as a comparator when in fact the Vehicle Manufacturing, Repair, Services and Retail Award 2010 should have been used – further submitted it was not given an opportunity to put submissions on the rosters which might be used in the future – Full Bench majority found that if assumptions used in modelling contained in Annexure A were changed in the manner suggested by the appellant a different result could conceivably have occurred with respect to the application of the BOOT – found decision was made using the modelling in Annexure A – found Annexure A and the assumptions used in the calculations in Annexure A were not put to appellant – decision at first instance quashed – application remitted to Lawrence DP – decision of McKenna C – found three matters should be considered by Full Bench rather than on referral for determination by a single member – firstly whether the appellant had the capacity or standing to make the application for approval of the agreement – secondly the appellant’s application to adduce new evidence before the Full Bench as to the dates relevant to the provision of the notice of employee representational rights – thirdly the appellant’s application for a drafting error in the agreement to be corrected – Full Bench then considered other aspects of appeal – found Form F17 was declared on behalf of all franchisees – summary document in English provided to employees where 155 employees were from non-English speaking backgrounds appeared inadequate – consideration of requirements of better off overall test – consideration of rosters, indicative rosters and supporting information for the purposes of examining loaded rates – part time employees may be worse off under agreement – consideration of ‘reconciliation’ undertakings [Main People P/L] – found appellant not denied natural justice – found Commission at first instance had squarely put the appellant on notice what would occur if acceptable undertakings were not provided within the timeframe specified – found Commission not constrained to model only the typical roster propositioned by the appellant – Re Knightwatch Security distinguished – use of incorrect comparator award in modelling at Annexure A to the decision attracts public interest to support the grant of permission to appeal – appeal upheld – decision quashed. Appeal by AJ Convenience Services P/L t/a 7-Eleven Rozelle & 7-Eleven Bexley against decision of Roe C of 18 January 2016 [[2016] FWC 330]
…
