Anston Pty Ltd as Trustee for the Trikam Family Trust and Ajay Amin as Trustee for Amin Family Trust and Aqualumiere Pty Ltd

[2014] FWCA 5514

[2014] FWCA 5514

FAIR WORK COMMISSION

DECISION

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

Anston Pty Ltd as Trustee for the Trikam Family Trust and Ajay Amin as Trustee for Amin Family Trust and Aqualumiere Pty Ltd
(AG2014/6621)

PURE INDULGENCE ENTERPRISE AGREEMENT (NO.2) 2014 - ENTITY 3

Hair and Beauty
COMMISSIONER BULL	PERTH, 13 AUGUST 2014

Application for approval of the Pure Indulgence Enterprise Agreement (No.2) 2014 - Entity 3.

[1] An application has been made for approval of an enterprise agreement known as the Pure Indulgence Enterprise Agreement (No.2) 2014 - Entity 3 (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 via its representative on 24 July 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the title of the Agreement, the dispute settlement procedure, overtime and rates of pay. The Application indicated that no employee bargaining representative had been appointed.

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

Name of the Agreement

[4] On 1 July 2014, in addition to this application the Commission received two other applications ([2014] FWCA 5515, [2014] FWCA 5516) for the approval of an enterprise agreement filed by the Applicant’s representative. As the agreements appeared to contain identical terms and conditions the matters were dealt with together.

[5] While the three agreements sought to cover different employers and their respective employees, the Commission noted that the three agreements contained the same agreement title (Pure Indulgence Enterprise Agreement (2) 2014) and was concerned that this may create confusion amongst the employees as to which agreement they were covered by.

[6] Upon request from the Commission, the Applicant was asked to amend the title of the agreements so they could be easily differentiated.

[7] 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. Upon advice from the Applicant, the title of the Agreement with respect to this application will be amended, to be known as, the Pure Indulgence Enterprise Agreement (No.2) 2014 - Entity 3.

Undertakings

Dispute settlement procedure

[8] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 8.3 - Grievance and dispute settlement procedure, of the Agreement. In particular, that the dispute settlement procedure in the Agreement will apply to any disputes that arise in relation to the National Employment Standards as per s.186(6)(a)(ii) of the Act.

Overtime

[9] In its correspondence to the Applicant, the Commission noted that clause 1.6 - Additional hours (overtime), of the Agreement provides that employees engaged on a casual basis shall be paid overtime at the rate of 150% for all times, except on Sunday where overtime shall be paid at the rate of 200%. The Hair and Beauty Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides that overtime hours are to be paid at the rate of 150% for the first three hours and 200% thereafter.

[10] The Applicant has provided an undertaking with respect to clause 1.6 that casual employees shall be paid overtime at the rate of 150% for the first 3 hours and 200% thereafter in respect of all overtime worked under the Agreement.

Rates of pay

[11] With respect to Schedule A - Wages, and in particular, the rate of pay under the Agreement which applies to an employee classified as a Receptionist/Assistant, the Commission advised the Applicant that the rate of pay for this classification was less than rate of pay under the Award.

[12] The Applicant has provided an undertaking with respect to Schedule A that the permanent rate of pay for the Receptionist/Assistant classification will be increased to $18.60 per hour and the casual rate of pay will be increased to $23.25 per hour.

[13] Upon review of the correspondence and undertakings I am satisfied that the employees would be better off overall under the Agreement.

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

[15] 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.

[16] 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.

[17] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 20 August 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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