Agnew Legal Pty Ltd

[2016] FWCA 4221

[2016] FWCA 4221

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/959)

SD LOGISTICS PTY LTD - ENTERPRISE AGREEMENT 2016

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 7 JULY 2016

Application for approval of the SD Logistics Pty Ltd - Enterprise Agreement 2016

[1] An application has been made by Agnew Legal Pty Ltd (the applicant) for the approval of an enterprise agreement known as the SD Logistics Pty Ltd - Enterprise Agreement 2016 (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. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[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 Commission notes that there were no employee organisations as union bargaining representatives and no employee bargaining representatives involved in the agreement making process.

[5] On 26 May 2016, the Commission wrote to the applicant seeking clarification of the delay in lodging the application with the Commission and the majority vote information provided in the Employer’s F17 Statutory Declaration. The Commission also sought further information about working hours and the rostering system under the Agreement.

Late lodgement

[6] The Commission noted that the application for approval of the Agreement was not lodged to the Commission within 14 days after the Agreement made as required by s185(3)(a) of the Act. The Commission requested an explanation of the delay in making the application in order to consider if in all the circumstances it is fair to extend the 14 day period prescribed in s185(3)(a).

[7] Mr Agnew, the bargaining representative for the employer, provided the Commission with information that the delay in lodgement was due to the solicitors clerk not completing the work whilst he was interstate. He subsequently was not able to follow this up with the client until he returned. Given this response and pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

Rates of pay, rostering under the parameter of hours and wage review

[8] The Agreement provided base rates of pay 8.27% to 12.77% above the corresponding minimum rates of pay under the Award. The Agreement is stated to cover permanent full-time, permanent part-time and casual employees. The hourly rates for permanent employees are inclusive of annual leave loading. The hourly rates for casual employees incorporate a casual loading of approximately 23%.

[9] The Commission noted that the hourly rates are applicable for work on any day of the week. The Commission was concerned that these hourly rates did not appear to be high enough to compensate for the removal of weekend and public holiday penalties particularly if employees work regularly during these times including casual employees who may work a significant number or majority of their working hours during weekends and public holidays. The Commission noted the provisions of Appendix A which provide a parameter of hours worked Monday to Friday, Saturday, Sunday, public holidays and evenings.

[10] The Commission conducted an analysis of the Agreement rates in accordance with those parameters. The Commission was concerned that employees working in accordance with those parameters may not be better off overall under the Agreement with the hourly rates provided by the Agreement and requested the applicant provide undertakings to address these concerns.

[11] In response, the applicant provided undertakings as follows:

● that the hourly rates provided in Appendix A of the Agreement are deleted and replaced by higher rates;
● that the employer will not engage employees on a casual basis and will not rely on any casual provisions in the Agreement;
● that hourly rates are based on the parameter of hours provided in Appendix A, that employees will be rostered equitably in accordance with those parameters and not regularly rostered on weekends; and
● that the employer will conduct a wage review for each employee against the modern award 6 months from the date of operation of the Agreement or if an employee terminates their employment during the nominal term of the Agreement and should the review establish an employee is no better off overall under the Agreement, the employer will pay the difference to the employee within 3 pay periods.

[12] The Commission conducted a second analysis of the hourly rates provided in the undertakings in accordance with the parameters of Appendix A including the effect of working some weekend and public holiday shifts. The Commission is satisfied that the higher rates address the issues raised with the applicant and that these rates in conjunction with rostering based on the parameter of hours will ensure that employees at all classification levels are better off overall under the Agreement.
Undertakings provided

[13] The undertakings provided by the applicant address the Commission’s concerns as detailed above. The undertakings provided by the employer are attached at Annexure A of this decision. The undertakings are taken to be a term of the Agreement.

[14] The undertakings are not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

Approval

[15] Taking into account the revised rates of pay under the Agreement when compared to the Award and other undertakings provided by the applicant in relation to parameter of hours, equitable rostering, wage review and commitment not to engage casual employees detailed above, I am satisfied that the Agreement results in employees being better off under the Agreement.

[16] 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.

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 14 July 2016. The nominal expiry date of the Agreement is 1 July 2018.

[18] This decision and its undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

DEPUTY PRESIDENT

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Appendix A