BE Burgers Pty Ltd

[2013] FWCA 5861

[2013] FWCA 5861

FAIR WORK COMMISSION

DECISION

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

BE Burgers Pty Ltd
(AG2013/1681)

BEBURGERS PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2013

Application for approval of the BEBurgers Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the BEBurgers Pty Ltd 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] The Commission wrote to the Applicant and its representative on 11 July 2013 with respect to clause 14 - Public Holidays, and in particular, sub clause 14.3 and 14.4 of the Agreement which provides a penalty payment to employees working on a public holiday. The penalty rates provided for in the Agreement appeared to be less than the penalty rates provided for in the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

Undertakings

Penalty rates

[3] The Applicant provided correspondence to the Commission outlining the current transitional arrangements under the Award with respect to penalty payments on public holidays. An undertaking has been provided by the Applicant that permanent employees performing work on a public holiday up until 30 June 2014 will be paid 200% of their permanent base rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, permanent employees will be paid 230% of their base rate of pay for those hours worked.

Casuals

[4] A further undertaking has been provided by the Applicant with respect to casual employees working on a public holiday. The undertaking states that casual employees performing work on a public holiday up until 30 June 2014 will be paid 200% of their casual rate of pay for those hours worked and for work performed on a public holiday from 1 July 2014 onwards, casual employees will be paid 205% of their causal rate for those hours worked.

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

[6] In its correspondence to the Applicant the Commission requested a breakdown of indicative rosters and calculations with respect to each classification under the Agreement as the Commission notes that the base rates of pay include a laundry allowance, annual leave loading and other penalties for evening and weekend work.

[7] A number of indicative rosters have been provided to the Commission to demonstrate that employees paid under Schedule A of the Agreement are better off overall.

[8] The Agreement covers those employees classified as a Level 1 and Level 2 employee. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[9] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 26 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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