Boctor Investments Pty Ltd

[2010] FWA 7793

[2010] FWA 7793

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boctor Investments Pty Ltd
(AG2010/10894)

COMMISSIONER GOOLEY MELBOURNE, 8 OCTOBER 2010

Boctor Investments Subway Enterprise Agreement.

[1] An application has been made for approval of the Boctor Investments Subway Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boctor Investments Pty Ltd (Boctor). The agreement is a single-enterprise agreement.

[2] On 24 June 2010 I wrote an email to the employer outlining a number of concerns I had about the Agreement. In particular the Agreement provided for rates of pay below the rates in the pay scale for fast food employees. In addition, I drew the employer’s attention to the following clauses in the Agreement:

• Clause 10 provides for lesser entitlement for full time, part time and casual employees.



• Clause 10.2 imposes obligations on employees not found in the awards.



• Clause 10.7 provides that employees can be required to undertake training without payment



• Clause 10.8 requires the payment of a deposit for the uniform – an obligation not provided for in the modern award.



• Clause 11 provides a lesser rostering requirement than provided in the modern award.



• Clause 12 refers to an average over a cycle of shifts but no cycle is defined.



• Clause 13 provides for working additional hours at ordinary time rates.



• Clause 15 refers to the Australian Fair Pay Commission. This body no longer exists.



• Clause 18.5 is inconsistent with the National Employment Standards.



• Clause 24 does not provide for any penalty for working on a public holiday



• Clause 27 permits the deduction from pay without the employee’s consent.

[3] The application was listed for hearing on 29 July 2010 and Mr Simon Boctor appeared for Boctor.

[4] After discussing the matters raised in the email the hearing was adjourned to enable Mr Boctor to consider his position. Mr Boctor requested and was given 45 days to review the Agreement. I advised Mr Boctor that he could provide undertakings or withdraw his application. I advised if he did neither I would issue a decision refusing to approve the Agreement.

[5] On 14 September 2010 Mr Boctor forwarded to my chambers a revised agreement which “amended all the clauses that were brought to our attention via email and also during our hearing on 29 July 2010.”

[6] I have reviewed the revised agreement forwarded by Mr Boctor and presume that the variations to the Agreement proposed by Mr Boctor were intended to be undertakings.

[7] The relevant award for the purposes of the Better Off Overall Test is the Fast Food Industry Award 2010 (the FF Award). The relevant rates of pay at the test time were those provided in the relevant pay scales.

Weekly employee	Initial Agreement	Revised Agreement	AFPCS at test time
Fast Food Worker Grade 1	15.03	15.86	15.86
Fast Food Worker Grade 2	15.33	16.16	16.13
Fast Food Worker Grade 3	15.70	16.68	17.02
Fast Food Worker Grade 4	16.41	17.41	17.24

Casual employee	Initial Agreement	Revised Agreement	AFPCS at test time
Fast Food Worker Grade 1	17.89	20.04	19.83
Fast Food Worker Grade 2	18.25	20.77	20.16
Fast Food Worker Grade 3	18.69	21.50	21.28
Fast Food Worker Grade 4	19.55	22.23	21.55

[8] In addition to increasing the rates, Mr Boctor removed the obligation of employees to undertake training in their own time, removed the obligation for employees to pay a deposit for their uniform that had previously been in clause 10.8.2 of the Agreement, but still made reference to the deposit in clause 10.8.3. The obligation to work additional hours at ordinary time rates was removed but no overtime provision was included. Cashing in of annual leave is provided for in the revised agreement in a manner which is consistent with the National Employment Standards.

[9] The Agreement provides for no overtime, no public holiday penalties, no annual leave loading, and no penalties for working on Saturday, Sunday or after 6 pm.

[10] In addition, the Agreement does not provide for part time employees to have a regular pattern of work or to be paid overtime if they work more than their agreed hours.

[11] The Agreement further provides for deduction from the employee’s wages without the employee’s consent.

[12] The Agreement also imposes obligations on employees not found in the FF Award in particular at clause 10.

[13] There is no annual leave loading in the Agreement for weekly employees.

[14] Mr Boctor advised that his business commenced after 27 March 2006 and as such he was obliged to comply with the relevant pay scales and casual loading and the Australian Fair Pay and Conditions Standard. From 1 January 2010 Mr Boctor was obliged to comply with the FF Award. The application was lodged on 22 June 2010 and consequently this is the relevant date for the application of the better off overall test.

[15] I have considered the proposed changes to the Agreement and they address some of the concerns raised in my correspondence. However the Agreement doesn’t provide for any conditions more beneficial than provided in the FF Award and other conditions are less beneficial than provided in the FF Award.

[16] The rate of pay for a weekly employee in the first 12 months of employment is the rate payable under the relevant pay scale. In assessing the Agreement section 193(7) makes it clear that I can have regard to different classes of employees. Here weekly employees in the first year of employment who are employed as level 1 employees will not be better off under the Agreement. When the annual leave loading is taken into account all weekly employees are paid at or below the relevant pay scale.

[17] I am not satisfied that each award covered employee and prospective award covered employee will better off if the Agreement applied to the employee than if the FF Award applied to the employee. I therefore decline to approve the Agreement.

COMMISSIONER

Appearances:

S Boctor for Boctor Investments Pty Ltd

Hearing details:

2010.

Melbourne:

July 29.

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