2Fresh Pty Ltd as Trustee

[2013] FWCA 9030

[2013] FWCA 9030

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

2Fresh Pty Ltd as Trustee
(AG2013/11353)

2FRESH PTY LTD AS TRUSTEE ENTERPRISE AGREEMENT 2011

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 19 NOVEMBER 2013

Application for variation of the 2Fresh Pty Ltd Trustee Enterprise Agreement 2011.

[1] An application has been made by 2Fresh Pty Ltd, pursuant to s 210 of the Fair Work Act 2009 (the ‘Act) for the approval of a variation to a single enterprise agreement known as the 2Fresh Pty Ltd as Trustee Enterprise Agreement 2011 (the ‘Agreement’). The Agreement currently covers 55 employees who are engaged at the applicant’s five cafes in Darwin, Northern Territory.

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr B Barnes, Director, said that on 2 October 2013 the employees had been given a copy of the proposed variations and an email setting out the effect of the proposed variation and voting for the variation’s approval was completed on 24 October 2013. In a vote, all 45 of the employees who voted, agreed to approve the variation to the Agreement. The application for approval of the variation was lodged on 6 November 2013, thus satisfying s 210(3) of the Act.

[3] The application seeks to vary the Agreement by inserting provisions (being clause 11A and sub-clause 7.1.4), dealing with the engagement of employees as trainees and their conditions of employment. The following sub-clause is proposed to be inserted after sub-clause 7.1.3:

‘7.1.4 Permanent employees may be engaged as Trainees. A Trainee is an Employee who:

(a) is registered with the relevant State or Territory training authority or under a law of a State or a Territory relating to the training of Employees;

(b) is bound by the terms of a training agreement registered with the appropriate State or Territory training authority or made under a law of a State or Territory relating to the training of Employees;

(c) undertakes approved training which is solely on-the-job or partly on-the-job and partly off-the-job.’

[4] The following clause is proposed to be inserted after clause 11:

‘11.A TRAINEES

11.A.1 A Trainee completing a:

(a) Level I to III traineeship will be paid the following minimum hourly rate until the completion of their traineeship:

Highest year of schooling completed
Year 10	Year 11	Year 12
School leaver	$7.35	$8.10	$9.65
Plus 1 year out of school	$8.10	$9.65	$11.23
Plus 2 years out of school	$9.65	$11.23	$13.07
Plus 3 years out of school	$11.23	$13.07	$14.97
Plus 4 years out of school	$13.07	$14.97	$14.97
Plus 5 years or more out of school	$14.97	$14.97	$14.97

(b) Level IV traineeship will be paid the following minimum hourly rate until the completion of their traineeship:

Highest year of schooling completed
Year 10	Year 11	Year 12
School leaver	$7.63	$8.41	$10.12
Plus 1 year out of school	$8.41	$10.12	$11.66
Plus 2 years out of school	$10.12	$11.66	$13.57
Plus 3 years out of school	$11.66	$13.57	$15.54
Plus 4 years out of school	$13.57	$15.54	$15.54
Plus 5 years or more out of school	$15.54	$15.54	$15.54

11.A.2 An adult Trainee, that being an employee of 20 years of age or more, completing a Level IV traineeship will be paid the following minimum hourly rate:

First year of traineeship	Second and subsequent years of traineeship
$15.54	$16.14

[5] At a hearing of the application on 15 November 2013, Ms L Hogg, Solicitor appeared for the applicant. Ms Hogg outlined the effect of the variations and submitted that all of the legislative requirements for approval of the variations have been satisfied and that the application should be approved by the Commission. She noted that existing employees would not be affected in any substantive way by the variations sought and that the proposal had been unanimously approved by the employees who had voted.

[6] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement as varied itself, I am satisfied that all of the requirements of the Act, in particular, ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Accordingly, I approve the proposed variations to the 2Fresh Pty Ltd as Trustee Enterprise Agreement 2011. Pursuant to s 216 of the Act, the variation will operate from 15 November 2013.

DEPUTY PRESIDENT

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<Price code A, AE890782  PR544630>