Agnew Legal Pty Ltd

[2015] FWCA 8705

[2015] FWCA 8705

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/5045)

ACT - PRIME PTY LTD - ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 DECEMBER 2015

Application for approval of the ACT Prime Pty Ltd - Enterprise Agreement 2015

[1] An application has been made by Agnew Pty Ltd (a bargaining representative appointed by the employer). ACT Prime Pty Ltd trading as Subway Belconnen is the employer to which this application relates the approval of an enterprise agreement known as the ACT Prime Pty Ltd - Enterprise Agreement 2015 (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 employees engaged by the employer, who would otherwise be covered by the Fast Food Industry Award 2010 (the Award), being the relevant reference instrument for the purposes of the better off overall test (BOOT) as required under s.186 of the Act.

[3] Mr Agnew, the bargaining representative for the employer was notified of issues the Commission identified with the Agreement on 9 December 2015. Correspondence and requested undertakings addressing the identified issues were received from Mr Agnew on 15 December 2015.

[4] Concerns raised by the Commission were with respect to:

1. Overtime rates;

2. Weekend Penalties; and

3. Rates of pay for 17 year old employees.

Overtime Rates

[5] Although the Agreement provides for overtime rates which are of a similar magnitude to equivalent rates in the Award, overtime rates under the Agreement are payable under more limited circumstances than the Award. For example under the Agreement, overtime rates are not payable to permanent employees who may work outside ordinary hours of work or before or after a rostered commencement time, or to part-time employees who may work in excess of agreed hours.  

Undertaking in relation to overtime

[6] At the request of the Commission, an undertaking has been provided by the employer such that the overtime provisions of the Agreement are in line with the Award.

Weekend Penalties

[7] Pay rates under the Agreement are inclusive of weekend penalties. However, the base rates of pay under the Agreement are higher than the Award:

● Adult rates of pay are 8.60% - 11.42% higher than corresponding minimum rates pay;

● Junior rates of pay are 8.23% - 9.02% higher than corresponding minimum rates of pay.

[8] The Commission was not satisfied that the higher hourly rates of pay adequately compensated for the removal of weekend penalties and was concerned that employees who may work only on weekends or a greater number of weekend hours than weekday hours would be worse off under the Agreement.

Undertaking in relation to weekend work

[9] An undertaking has been provided by the employer that employees are limited to a certain number of weekend and public holiday hours worked. The limited parameter of hours which employees may be required to work with respect to weekends and public holidays, in conjunction with the higher base rates of pay under the Agreement ensures employees will be better off under the Agreement.

Rates of pay for 17 year old employees

[10] Rates of pay for 17 year old employees at Appendix B of the Agreement were not high enough to compensate for the removal of weekend penalties, which would otherwise have been provided under the Award.

Undertaking in relation to rates of pay for 17 year old employees

[11] An undertaking has been provided by the employer to increase the rate of pay for 17 year old employees, and in conjunction with the undertaking in relation to limited weekend work, I am satisfied that this group of employees, as with other employees under the Agreement will be better off when compared to the Award.

Conclusion

[12] The undertakings provided by the applicant address the Commission’s concerns. Taking into account the higher rates of pay under the Agreement and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement. The undertakings provided by the employer are attached at Annexure A of this decision.

[13] 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.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 29 December 2015. The nominal expiry date of the Agreement is 30 June 2017.

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

DEPUTY PRESIDENT

Annexure A

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