Agnew Legal Pty Ltd

[2014] FWCA 5401

[2014] FWCA 5401

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/1675)

J&C DEVELOPMENT GROUP PTY LTD - ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	PERTH, 8 AUGUST 2014

Application for approval of the J&C Development Group Pty Ltd - Enterprise Agreement 2014 - undertakings provided - error in Agreement corrected.

[1] An application has been made for approval of an enterprise agreement known as the J&C Development Group Pty Ltd - Enterprise Agreement 2014 (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] On 22 July 2014, the Commission wrote to the Applicant, Agnew Legal Pty Ltd, in relation to a number of concerns it had with the Agreement. In particular, the concerns related to the rates of pay, casual employees, meal breaks, superannuation weekend and public holiday penalties. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 30 July 2014.

Correction of error

[4] In its correspondence to the Commission the Applicant advised that it sought to amend the existing clause 3.5 - Superannuation, of the Agreement. In particular, the Applicant seeks to increase the level of superannuation contribution to 9.5% from the 9.25% stated in the Agreement.

[5] Pursuant to s.586(a) of the Act, the Commission may allow for a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms it considers appropriate. On the request made by the Applicant with respect to the increase of the level of the superannuation contribution, the amount will be amended to 9.5%.

Undertakings

Superannuation

[6] In its correspondence to the Applicant the Commission noted that clause 3.5 - Superannuation, and in particular, sub clause 3.5.1 of the Agreement does not name the employer’s default superannuation fund and thus does not satisfy the requirements of section 194(h) of the Act as it is unknown whether the fund offers a “MySuper product.”

[7] In response to the Commission’s request for clarification of this matter, the Applicant has advised that the default superannuation fund is the Retail Employees Superannuation Trust (REST).

Casual employees

[8] The Commission notes that clause 4.1.2 – Hours of work – Part-time Employees, in particular, sub clause 4.1.2(b) of the Agreement provides that the minimum daily engagement of a part-time employee is a minimum of two hours per shift. The Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test at clause 12.2 provides that the minimum daily engagement of a part-time employee is three hours.

[9] The Applicant has provided an undertaking with respect to sub clause 4.1.2(b) of the Agreement that a part-time employee will be provided a minimum three hours per shift and a maximum of ten hours per shift.

Meal and rest breaks

[10] The Commission notes that clause 4.4 – Breaks, of the Agreement provides that all employees are entitled to an unpaid meal break of 30 minutes if they work more than 6 consecutive hours in a shift. The Award at clause 27.1 provides for further meal and rest breaks where hours of work are beyond 5 hours.

[11] The Applicant has provided an undertaking with respect to clause 4.4.1 of the Agreement that it will apply the meal and rest breaks as they are provided for at sub clause 27.1(a) of the Award.

Rates of pay and penalties

[12] The Commission notes that the Agreement does not provide for weekend and public holiday penalties as employees are compensated for these in the hourly rate of pay being higher than the Award. The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement despite the Agreement not providing for these penalties.

[13] The Applicant provided a number of indicative rosters and calculations. Upon review of the Commission’s concerns the Applicant has advised that it has identified that employee’s classified under the Agreement as a Shop Attendant may not be better off overall. The Applicant has provided an undertaking to increase the rates of pay with respect to employees classified as a Shop Attendant by 3%.

[14] Upon review of the correspondence and undertakings I am satisfied the Agreement meets the better off overall test.

[15] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[16] 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 substantial change to the Agreement as per s.190(3)(b) of the Act.

[17] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[18] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 15 August 2014. The nominal expiry date of the Agreement is 1 January 2016.

[19] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Annexure A

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