Agnew Legal Pty Ltd

[2015] FWCA 5429

[2015] FWCA 5429

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/1256)

MUZZ BUZZ BAYSWATER - ENTERPRISE AGREEMENT 2015

Fast food industry
COMMISSIONER BULL	SYDNEY, 11 AUGUST 2015

Application for approval of the Muzz Buzz Bayswater - Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Muzz Buzz Bayswater - Enterprise Agreement 2015 (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] The Fair Work Commission (the Commission) wrote to the applicant, via its legal representative, Mr Christopher Agnew on 30 June, 27 July, and 3 August 2015 with respect to the:

i. Notice of Employee Representational Rights (NERR);

ii. Base rates of pay for trainees and Appendix B employees (pay rates are contained in appendices A to C under the Agreement) not meeting the requirements of the s.186 better off overall test; and

iii. Requirement for employees to work on public holidays under the Agreement being in contravention of the National Employment Standards (NES).

[3] The applicant corresponded to the Commission on a number of occasions to address the issues raised, with final undertakings submitted on 7 August 2015.

NERR

[4] The Commission noted that the Agreement name contained in the NERR did not correspond to the Agreement name to which this application relates, rather, referring to the 2014 Agreement instead of the 2015 Agreement. Mr Agnew was referred to the NERR requirement under s.173 of the Act and noted the relevance of s.174 which prescribes the required content and form of the Notice.
[5] In Mr Agnew’s written correspondence of 30 June 2015, he advised the Commission that the NERR was provided to staff covered by the proposed Agreement in individual meetings that took place from 15 December 2014 until 18 December 2014, where an the initial draft of the proposed agreement was also provided to staff.  The initial draft of the proposed Agreement reflected the year in which it was initially drafted, being 2014. As such, it is submitted by the applicant that the year of the Agreement contained in the NERR was a typographical error.

Better Off Overall Test (BOOT)

[6] Section 186 of the Act requires the Commission to be satisfied that the proposed agreement results in employees being better off overall under the Agreement than if they would otherwise be under the relevant award, being the Fast Food Industry Award 2010 (the Award) in this application. Accordingly, the Commission provided the employer with an opportunity to provide written undertakings acceptable to the Commission in addressing the concerns identified below, pursuant to s.190 of the Act.

Rates of pay for trainees

[7] With respect to cl.3.3.3 of the Agreement, it states that “All trainees undertaking a structured or registered traineeship will be paid no less than the Introductory hourly rate of pay until completion of their traineeship”.  However, the Agreement did not expressly identify an ‘Introductory hourly rate’ of pay for trainees.

Rates of pay for Appendix B employees

[8] With respect to employees engaged under the Appendix B pay rate schedule, the Commission was not satisfied that increased rates of pay adequately compensated for the reduced overtime rate for work on Sundays or the lack of annual leave loading.

Requirement to work on a public holiday

[9] With respect to cl.5.7.2 of the Agreement, it states that “It is an expectation that all Employees will be required to work on public holidays given the nature of the Employer's business. The Employer requires all Employees to be available to work on public holidays unless the Employee has reasonable grounds for refusal”. It was noted to the applicant that this term of the Agreement may be detrimental to an employee when compared to s.114 of the Act (NES) which effectively provides that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday, and an employer may request an employee to work on a public holiday if the request is reasonable.

[10] The applicant was advised that pursuant to ss.55 and 56 of the Act that a term of an enterprise agreement has no effect to the extent that it contravenes the NES.

Undertakings

[11] On 7 August 2015, the applicant provided undertakings which provide that:

i. All trainees undertaking a structured or registered traineeship will be paid no less than the customer service level hourly rate of pay until completion of their traineeship;

ii. All the hourly rates of pay for Appendix B employees will be paid the rates as per the Agreement with all other entitlements as prescribed under the Award; and

iii. Employees are not removed of their entitlement arising from the NES to refuse to work on a public holiday on reasonable grounds.

[12] The submissions and undertakings provided by the applicant address the Commission’s concerns as required under the Act. 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.

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

[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 18 August 2015. The nominal expiry date of the Agreement is 30 June 2018.

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

COMMISSIONER

Annexure A

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