Bakers Delight Holdings Ltd

[2014] FWCA 180

[2014] FWCA 180

FAIR WORK COMMISSION

DECISION

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

Bakers Delight Holdings Ltd
(AG2013/11031)

BAKERS DELIGHT ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 8 JANUARY 2014

Application for approval of the Bakers Delight Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Bakers Delight 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 29 November 2013, the Commission sent correspondence to the Applicant via its legal representative noting a number of concerns it had with certain aspects of the Agreement. The concerns included rates of pay, meal breaks and the meal allowance.

[3] Correspondence was received from the Applicant on 29 November, 3, 5 and 23 December 2013.

Undertakings

Rates of pay

[4] The Commission notes that the Agreement provides various wage schedules. Modelling undertaken by the Commission for employees engaged in production indicated that the rates of pay did not appear to provide an entitlement that was better off over all when compared to the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test.

[5] On 3 December 2013, the Applicant submitted that the average hours modelling adopted by the Commission did not reflect the actual working patterns of the Applicant. In particular, the Applicant states that the Commission’s modelling assumed that all production staff commenced their shift prior to 2:00am, which under the Award would attract a 30% penalty loading. In practice, the Applicant submits that production employees are generally rostered to commence after 2:00am to avoid the 30% penalty loading, unless there are exceptional circumstances, such as, during the Easter period.

[6] On 5 December 2013, the Applicant provided an undertaking for production employees who commence a shift prior to 2:00am will be paid an additional loading for that shift.

[7] Upon review of the proposed undertaking the Commission advised the Applicant that the concerns related to the terms of the Agreement with respect to the defined spread of ordinary hours at sub clause 16.2 of the Agreement, that provided the ordinary spread of hours shall be from midnight to 4:00pm. The proposed undertaking did not provide for an entitlement that would result in production employees being better off overall where they were to commence their shift prior to 2:00am.

[8] While the Applicant confirmed in previous correspondence and demonstrated by the rosters it provided, that in practice, the Applicant generally rosters their production shifts to commence after 2:00am to avoid the 30% penalty loading, the Commission advised that for the purposes of the better off overall test, it must be conducted with respect to the terms of the Agreement as they are stated.

[9] On 23 December 2013, the Applicant provided a revised undertaking that states production employees who commence work on a shift prior to 2:00am will receive a 30 per cent morning shift loading for the duration of that shift, calculated on their Monday to Friday wage rate under the applicable minimum wage rate schedule of the Agreement.

Meal breaks

[10] The Commission notes that clause 18 - Meal and Rest Breaks, includes equivalent rest provisions as per the Award for employees engaged in sales. However, the Award at sub clause 30.5 provides for rest pauses and meal breaks taken by shift workers to be paid breaks and form part of the hours of work. The Agreement does not include an equivalent entitlement for production employees.

[11] The Applicant has provided an undertaking that notwithstanding the provisions of clause 18, all breaks taken by production employees are paid breaks and form part of their hours of work.

Meal allowance

[12] The Commission notes that at clause 27 - Meal Allowance, in particular, subclause 27.1, the Agreement provides that an employee, who is required to work more than one hour of overtime after the Employee’s ordinary time of ending work, without being given 24 hours’ notice, will be either provided with a meal or paid a meal allowance of $16.15. Where such overtime work exceeds 4 hours a further meal allowance of $14.62 will be paid.

[13] The Award at sub clause 20.1(a) provides for a meal allowance of $16.67 where an employee is required to work more than one hour of overtime after the employee’s ordinary time of ending work and where such overtime exceeds 4 hours a further meal allowance of $15.09 will be paid.

[14] The Applicant has provided an undertaking that sub clause 27.1 of the Agreement will be applied as per sub clause 20.1(a) of the Award.

[15] Upon review of the Applicant’s correspondence, including the indicative rosters, calculations and undertakings, I am satisfied that employees covered by this Agreement are better off overall.

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

[17] 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.

[18] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 15 January 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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