Aztech Group Pty Ltd T/A Oporto Kogarah

[2015] FWCA 1289

[2015] FWCA 1289

FAIR WORK COMMISSION

DECISION

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

Aztech Group Pty Ltd T/A Oporto Kogarah
(AG2014/8401)

AZTECH GROUP PTY LTD - ENTERPRISE AGREEMENT 2014.

Fast food industry
COMMISSIONER BULL	SYDNEY, 26 FEBRUARY 2015

Application for approval of the Aztech Group Pty Ltd - Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Aztech 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] The Commission wrote to the Applicant via its legal representative, Mr Christopher Agnew on a number of occasions with respect to concerns it had with the Agreement. In particular, the concerns related to whether the Agreement satisfied the better off overall test. The Commission held a telephone conference with Mr Agnew on 16 February 2015 in relation to the better off overall test.

[3] Correspondence was received from the applicant on 16, 17, 19 and 23 February 2015.

Better off overall test (BOOT)

[4] With respect to the BOOT, the Commission noted that the following entitlements under the Agreement were lower when compared to the Fast Food Industry Award 2010 (the Award), being the relevant award for the purposes of the BOOT. The Commission requested the applicant demonstrate how employees would be better off overall under the Agreement with lesser entitlements. In particular, the Commission was concerned with those employees who would be working the majority of their hours on the weekend.

Annual leave loading

[5] With respect to clause 5.1 - Annual leave, the Commission notes that the Agreement does not provide annual leave loading. The Commission requested the applicant address this issue.

[6] The applicant submitted that the higher hourly rate of pay under the Agreement incorporates an annual leave loading entitlement.

Maximum Hours

[7] With respect to clause 4.1.2- Hours of work- Part time employees, and in particular sub clause 4.1.2(b), the Commission noted that part time employees could be engaged for a maximum of 11.5 hours per shift under the Agreement, in comparison to a maximum of 11 hours under the Award.

Undertaking

[8] At the request of the Commission, the applicant has provided an undertaking which states that the maximum hours a part time employee may be engaged is 11 hours which is in line with the Award.

Penalties

[9] The Commission notes that the Agreement does not provide penalties for public holidays 1 and weekends.2

[10] On 16 February 2015, the applicant submitted that the higher hourly rate of pay compensated for the removal of penalties under the Agreement and submitted a number of indicative rosters and calculations to support the applicant’s submission.

[11] The Commission was not satisfied of the applicant’s submissions that the removal of weekend and public holiday penalty rates were duly compensated by the hourly rates under the Agreement. The Commission requested further correspondence from the applicant to address the Commission’s concerns with regard to the BOOT, and in particular those employees who worked the majority of their hours on the weekend.

[12] On 17 February 2015, the applicant provided an undertaking to increase the hourly rates of pay under the Agreement by 2%, and that no employees would be required to work on the following public holidays:

● Christmas day;

● Boxing day;

● Easter Friday; and

● Easter Sunday.

[13] The Commission was not satisfied with the applicant’s proposed undertakings, and requested the applicant to provide further correspondence to overcome the Commission’s concerns for those employees who work predominantly on weekends being worse off under the Agreement.

Undertaking

[14] The applicant has provided an undertaking with further increased hourly rates of pay and an employee reconciliation clause which states that upon an employee’s employment anniversary date, or termination of employment, an employee is entitled to request a reconciliation to establish whether any amount paid to them for work performed under the Agreement is less than what they would have received for work performed under the Award.

[15] Where such reconciliation establishes that the employee has been paid less under the Agreement, the employer will reimburse the employee for the difference between the amount paid under the Award and the amount paid under the Agreement.

[16] Further, the applicant has provided an undertaking which states that the hourly rates under the Agreement will increase over the nominal period of the Agreement in accordance with the Annual Wage Review Decisions of the Wage Panel of the Fair Work Commission.

[17] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

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

[19] 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.

[20] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 5 March 2015. The nominal expiry date of the Agreement is 1 January 2016.

[21] This decision is to be brought to the attention of employees by the applicant, noting the right for employees arising out of the reconciliation undertaking.

COMMISSIONER

Annexure A

 1   See clause 5.7.1- Payment for work on public holidays

 2   See clause 3.2- Wages

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