Chocolate Vanilla Pty Ltd T/A Gelatissimo Kirribilli

[2016] FWCA 2684

[2016] FWCA 2684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chocolate Vanilla Pty Ltd T/A Gelatissimo Kirribilli
(AG2016/272)

CHOCOLATE VANILLA PTY LTD ENTERPRISE AGREEMENT 2016

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 3 MAY 2016

Application for approval of the Chocolate Vanilla Pty Ltd Enterprise Agreement 2016.

[1] An application has been made by Chocolate Vanilla Pty Ltd T/A Gelatissimo Kirribilli (the applicant) for the approval of an enterprise agreement known as the Chocolate Vanilla Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees engaged by the employer.

[3] The Fast Food Industry Award 2010 (the Award) is the relevant reference instrument for the purposes of the better off over all test (BOOT) as required under s.186 of the Act.

[4] On 9 March 2016, the Commission wrote to the applicant seeking clarification as to how many employees were covered by the Agreement, the time between the issuance of the last notice of employee representational rights and the commencement of voting and the lack of signatories to the Agreement. The Commission also noted the absence of weekend penalties, allowances and leave loading as well as the reduction of public holiday penalties, casual loading, overtime rates and reductions to other Award entitlements in the Agreement.

Employees covered by the Agreement

[5] The information provided in the Employer’s F17 Statutory Declaration stated that two employees were covered by the Agreement, however the responses to various questions in the F17 Statutory Declaration referred to ‘the employee’ singularly.

[6] Ms Foo, the employer, provided the Commission with a revised F17 Statutory Declaration confirming that the references to ‘the employee’ in the original Statutory Declaration were typographical errors and that two employees were covered by the Agreement.

Time between issuance of the last notice of employee representational rights and the commencement of voting

[7] The information provided in the Employer’s F17 Statutory Declaration stated that the last notice of employee representational rights was issued on 11 January 2016 with voting commencing on 29 January 2016. The Commission requested clarification of these dates.

[8] Ms Foo confirmed, in her revised F17 Statutory Declaration, that the date provided as the date the last notice of employee representational rights was issued to employees was a typographical error and the correct date was 4 January 2016.

Signatories to the Agreement

[9] The copy of the Agreement lodged with the Commission on 12 February 2016 had not been signed as per s,185(5) of the Act and Fair Work Regulations, Reg 2.06A.

[10] Ms Foo provided a copy of the Agreement that had been signed in accordance with the Act.

Wage Increases

[11] The Commission noted that the Agreement contained two different references to the increases of the rates of pay in the Agreement.

[12] Clause 3.2.3 of the Agreement provides that these increases will be in accordance with the Annual Wage Review decisions of the Commission, whereas Appendix B provided specific percentage increases that were to be applied. The Commission requested an undertaking to clarify the annual wage increases provided in the Agreement.

[13] In response to the request of the Commission, The applicant provided undertakings to clarify that annual wage increases would be as per Appendix B.

Overtime provisions

[14] The Commission noted that under the terms of the Agreement, part-time employees would only receive overtime rates for hours worked outside the rostering provisions in clause 4.1.2 of the Agreement as opposed to receiving overtime rates for all time worked in excess of their agreed hours in the Award.

[15] The Commission was not satisfied that the hourly rates of pay were high enough to compensate for this reduction in overtime penalties and requested that the applicant provide undertakings to address this concern.

[16] In response to the request of the Commission, the applicant provided an undertaking that part-time employees would receive overtime rates for all time worked in excess of their agreed hours.

Other reductions

[17] The Commission noted a number of other reductions to Award entitlements, being:

● No annual leave loading;

● No allowances;

● An abandonment of employment clause;

● The ability for employees to work broken shifts; and

● The lack of breaks for managerial employees.

[18] The Commission was not satisfied that the rates of pay in the Agreement were high enough to compensate for these reductions to Award entitlements and requested that the applicant provide undertakings to address these concerns.

[19] In response to the request of the Commission, the Applicant provided undertakings as follows:

● That annual leave loading and allowances would be paid as per the Award;

● That abandonment of employment would be as per the Award;

● That employees would not work broken shifts; and

● That managerial employees would be entitled to breaks as set out in clause 4.4.1 of the Agreement.

Work on weekends and public holidays

[20] The Agreement provides base rates of pay 2.33% to 14.27% above the corresponding minimum rates of pay under the modern Award.

[21] The Commission noted that the hourly rates of pay are applicable for work on any day of the week. The Commission was concerned that these hourly rates did not appear high enough to compensate for the removal of weekend penalties and reduction in public holiday penalties particularly if employees work regularly during these times. The Commission noted the provisions of clause 4.1 and Appendix A which provide a parameter of hours to be worked by employees. The Commission conducted an analysis of the Agreement rates in accordance with those parameters. The Commission was not satisfied that employees working in accordance with those parameters would remain better off overall under the Agreement with the hourly rates provided by the Agreement. The Commission requested the applicant provide undertakings to address this concern.

[22] In response to the request of the Commission, the applicant provided undertakings that increased the rates of pay provided to employees on public holidays, however did not address any of the Commission’s concerns regarding work on weekends. The Commission requested further undertakings from the applicant to address these concerns.

[23] In response to the request of the Commission, the applicant provided undertakings that increased some of the base rates of pay provided to employees whilst decreasing others and removing public holiday penalties. The Commission advised the applicant that under s.190(3)(a) of the Act, it was unable to accept an undertaking that would cause financial detriment to any employee covered by the Agreement. The Commission requested the applicant provide undertakings to address its concerns as previously stated.

[24] In response to the request of the Commission, the applicant provided undertakings that increased the hourly rates of pay for all employees. The Commission remained concerned that the Agreement allowed for employees to work rosters that would mean they would not be better off overall. The Commission requested that the applicant provide undertakings to address these concerns.

[25] In response to the request of the Commission, the applicant provided undertakings as follows:

● That the hourly rates provided in Appendix B of the Agreement are deleted and replaced by higher rates;

● That employees may work a maximum of nine hours per shift;

● That full-time employees will work no more than two weekends per four week cycle;

● That casual and part-time employees will work four hours during the week over a two week cycle for every one hour worked on a Saturday; and

● That casual and part-time employees will work eight hours during the week over a two week cycle for every one hour worked on a Sunday.

[26] The undertaking provided by the applicant offers base rates of pay for permanent employees that are 9.89% - 18.40% above the corresponding minimum rates of pay under the modern Award and for casual employees that are 4.57% - 11.59% above the corresponding minimum rates of pay under the modern Award.

[27] The Commission conducted an analysis of the hourly rates provided in the undertakings in accordance with the parameters of clause 4.1 and Appendix A. The Commission is satisfied that the higher rates and limitation of the proportion of hours that employees may work on weekends will ensure that employees at all classification levels remain better off overall under the Agreement.

Undertakings provided

[28] The undertakings provided by the applicant address the Commission’s concerns in relation to work on weekends and public holidays, part time employees working overtime, wage increases and other reductions to Award entitlements. The undertakings provided by the employer are attached at Annexure A of this decision. The undertakings are taken to be a term of the Agreement.

[29] 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.

Approval

[30] Taking into account the revised rates of pay under the Agreement when compared to the modern Award, the increases to Award entitlements and the restriction to the proportion of weekend hours employees may work, I am satisfied that the Agreement results in employees being better off under the Agreement.

[31] 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.

[32] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 10 May 2016. The nominal expiry date of the Agreement is 31 December 2019.

DEPUTY PRESIDENT

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Annexure A