Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust T/A Bakers Delight - Rosebud Plaza

[2015] FWCA 4862

[2015] FWCA 4862

FAIR WORK COMMISSION

DECISION

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

Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust T/A Bakers Delight - Rosebud Plaza
(AG2015/3172)

CLIFF AND SEALE PTY LTD AS THE TRUSTEE FOR THE SEA CLIFF FAMILY TRUST ENTERPRISE AGREEMENT 2015

Retail industry
COMMISSIONER BULL	SYDNEY, 30 JULY 2015

Application for approval of the Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Cliff and Seale Pty Ltd as the Trustee for the Sea Cliff Family Trust Enterprise Agreement 2015 (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] At 3.4 of the application (F17) the applicant has stated that employees would be better off overall under the Agreement than the General Retail Industry Award 2010 (the Award) for the purpose of the better off overall test (BOOT). Rosters were provided in support of the application.

[3] Whilst the rates of pay are higher under the Agreement than the Award, the rates of pay are loaded to incorporate weekend and shift penalties, as well as annual leave loading.

[4] On 8 and 13 July 2015, the applicant was advised of concerns that retail employees who perform regular work on weekends may not be adequately compensated for the reduced entitlements under the Agreement, in particular the lower weekend rates.

[5] Upon review of the rosters, concerns were raised with the applicant in respect to retail employees, and that it would appear that they would only receive a greater remuneration under the Agreement when limited weekend hours were worked, and in particular Sunday shifts.

[6] On 13 July 2015, further rosters were provided to the Commission, submitting that the higher hourly rate under the Agreement compared to the Award balances out the rates of pay that employees receive under the Agreement, and that employees generally work short shifts on weekends. On this basis, the applicant submitted that based on the way the applicant rosters employees, employees are better off under the Agreement compared to the Award for the shifts they perform.

[7] Having regard to the submissions and rosters provided, a proposed undertaking with respect to weekend work was provided to the applicant to ensure that retail employees who may work significant hours over a weekend would be better off under the Agreement than the Award.

Undertaking

[8] The applicant has provided an undertaking which provides that if permanent or casual retail employees are rostered to work more on 3 hours on a Sunday per week, they will receive overtime penalties as per the Agreement. The overtime penalty rate is above the Sunday penalty rate of the Award.

[9] The undertaking provided by the applicant address the Commission’s concerns. Taking into account the higher rates of pay under the Agreement and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[10] The undertaking provided by the applicant is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[11] 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.

[12] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 6 August 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[13] This decision and undertaking should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

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