Aswar Group Pty Ltd

[2014] FWCA 1621

[2014] FWCA 1621

FAIR WORK COMMISSION

DECISION

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

Aswar Group Pty Ltd
(AG2013/11933)

WOWCOW (BONDI) ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 7 MARCH 2014

Application for approval of the WOWCOW (Bondi) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the WOWCOW (Bondi) Enterprise Agreement 2013 (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 6 February 2014, the Commission wrote to the Applicant via its legal representative with respect to a number of concerns it had with aspects of the Agreement. In particular, the concerns related to the various wage schedules and the rates of pay contained in the Agreement.

[3] Correspondence was received from the Applicant in relation to the issues raised by the Commission on 13 and 19 February and 4 March 2014.

Undertakings

Wage schedules

[4] In its correspondence to the Applicant, the Commission noted that the Agreement provides two wage schedules that are either fully inclusive of penalty rates or reduced penalty rates. Clause 21.1 of the Agreement provides that the employer shall nominate which schedule will be applicable to an employee in the letter of engagement, and clause 21.4 provides that the schedule may not be changed.

[5] The Applicant was asked to provide correspondence outlining how employees are better off where this could create a disadvantage for employees whose roster cycle is changed after engagement, for example, to include more weekend or late night work.

[6] The Applicant submits that clause 21.2 allows the employer and employee to vary the wage schedule by agreement at any time. T he Applicant has provided an undertaking to clarify clause 21.4 of the Agreement and submits that the clause shall be applied as if the clause reads that the employer and an employee may not agree to the payment of wage rates contained within different minimum wage schedules at any one time.

Rates of pay

[7] Wage modelling was undertaken by the Commission with respect to the rates of pay contained in the wage schedules of the Agreement. The modelling demonstrated that a number of employees were not better off overall based on the indicative rosters provided by the Applicant.

[8] On 13 February 2014, the Applicant provided a number of proposed undertakings in relation to the wage schedules in the Agreement. With respect to the Minimum Wage Rates Schedule A, the Applicant accepted that an employee who works on weekends only, would not be better off under this Schedule and provided an undertaking, that an employee who works more than 50% of their hours on the weekend shall not be placed on Schedule A.

[9] With respect to those employees who are engaged under the Minimum Wage Rates Schedule B of the Agreement, the Applicant accepted that an employee who works only on weekends would not be better off under Schedule B of the Agreement. The Applicant provided an undertaking to increase the weekend rates applied to these employees to ensure that weekend employees would be better off under the Agreement.

[10] The Applicant also submitted that the Commission’s modelling did not include the $5.50 worth of food provided to employees when a shift of more than 5 hours is worked as per clause 27.3 of the Agreement and had this been taken into account employees would be better off under the Agreement.

[11] On 17 February 2014, the Commission wrote the Applicant via its legal representative in relation to the proposed undertakings it had provided.

[12] The Commission’s concerns related to the Applicant’s submission that the Commission had not taken into account in its calculations where an employee works more than five hours, the entitlement to one free coffee and $5.50 worth of store purchases during their meal break, at clause 27.3 of the Agreement.

[13] The Commission advised the Applicant this benefit would not be taken into consideration for the purpose of the better off overall test as it depends upon the employee taking up the entitlement, that is, one free coffee and purchasing a total value of $5.50 worth of store purchases. Whether this could be considered a benefit is entirely dependent on each employee’s personal preference not known to the Commission.

[14] The Applicant provided amended undertakings to the minimum wage schedules contained in the Agreement.

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

[16] Upon review of the correspondence and the amended undertakings provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

[17] In this application for approval of the Agreement, the Commission notes that the employees did not appoint an employee bargaining representative. As such, the Applicant is to make known to its employees the undertakings it has provided to enable this Agreement to be approved.

[18] 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.

[19] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 March 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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