Agnew Legal Pty Ltd

[2014] FWCA 4879

[2014] FWCA 4879 [Note: a further decision has been issued to this document]

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/1285)

KK & MA PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Fast food industry
COMMISSIONER BULL	PERTH, 21 JULY 2014

Application for approval of the KK & MA Pty Ltd - Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the KK & MA Pty Ltd - Enterprise Agreement 2013-2017 (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 2 July 2014, the Commission alerted the Applicant, Agnew Legal Pty Ltd, to 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 11 July 2014.

Undertakings

Superannuation

[4] 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.

[5] In response to the Commission’s request for clarification of this matter, the Applicant has advised that the default superannuation fund is Retail Employees Superannuation Trust (REST). The Applicant has also advised that it has increased the level of contribution to 9.5% from the 9.25% in the current clause of the Agreement.

Casual employees

[6] 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.

[7] 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.

[8] Further, the Commission notes that clause 4.1.3 - Hours of work - Casual Employees, provides that a casual employee will be engaged on a minimum two hour shift. The Award at sub clause 13.4 provides that the minimum daily engagement of a casual is three hours.

[9] The Applicant has provided an undertaking with respect to sub clause 4.1.3 of the Agreement that a casual 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 Employer 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 Employer 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 aged 17 years old may not be better off overall. The Applicant has provided an undertaking to increase the rates of pay with respect to employees aged 17 years old by 1.79% per hour.

[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] 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.

[17] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 28 July 2014. The nominal expiry date of the Agreement is 1 March 2018.

COMMISSIONER

Annexure A

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