Agnew Legal Pty Ltd

[2014] FWCA 2999

[2014] FWCA 2999

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/706)

BALMAIN GELATARIA PTY LTD - ENTERPRISE AGREEMENT 2014-2018

Fast food industry
COMMISSIONER BULL	SYDNEY, 7 MAY 2014

Application for approval of the Balmain Gelataria Pty Ltd - Enterprise Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Balmain Gelataria Pty Ltd - Enterprise Agreement 2014-2018 (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 Commission wrote to the Applicant, Agnew Legal Pty Ltd as a bargaining representative appointed by the employer on 14 April 2014, in relation to a number of concerns it had with the Agreement. In particular, the concerns related to the minimum engagement per shift, meal and rest breaks, weekend and public holiday penalties.

[3] Correspondence was received from the Applicant on 23 April and 2 May 2014.

Undertakings

Minimum shift engagement

[4] 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 if a part-time employee is 18 years and under they may agree to work a minimum 2 hour 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 is three hours.

[5] The Employer being Blamain Gelataria Pty Ltd, 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.

[6] 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 2 hour shift. The Award at sub clause 13.4 provides that the minimum daily engagement of a casual is three hours.

[7] The Employer 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

[8] The Commission notes that clause 4.4.1 – Meal Breaks of the Agreement provides that all employees are entitled to an unpaid meal break of 30 minutes if they work more than 5 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.

[9] 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.

Penalties

[10] 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.

[11] The Applicant and the Employer provided a number of indicative rosters and calculations and stated that upon review of the Commission’s concerns they have realised that employees aged 17 and 18 years would not be better off overall under the Agreement. The Employer has provided an undertaking to increase the rates of pay for employees aged 17 and 18 years and has provided calculations to demonstrate that these employees would be better off overall given the undertaking provided.

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

[13] These undertakings 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 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 14 May 2014. The nominal expiry date of the Agreement is 1 January 2018.

COMMISSIONER

Annexure A

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