Colejack Coffees Pty Ltd

[2013] FWCA 5269

[2013] FWCA 5269

FAIR WORK COMMISSION

DECISION

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

Colejack Coffees Pty Ltd
(AG2013/1660)

COLEJACK COFFEES PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 1 AUGUST 2013

Application for approval of the Colejack Coffees Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Colejack Coffees 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 22 July 2013 with respect to clause 13 - Public Holidays, and in particular, sub clause 13.3 and 13.4 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.

[3] The Applicant provided correspondence to the Commission outlining the current transitional arrangements under the Award with respect to penalty payments on public holidays. The Applicant and its representative in its correspondence have stated that the penalty payments on public holidays in the Agreement are slightly lower than the penalty rates in the Award because the Agreement rates of pay are loaded with a laundry allowance, annual leave loading and evening penalties and have provided a comparison between the public holiday penalty rates under the Award and the rates under the Agreement and submit that employees are better off overall under the Agreement.

[4] 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.

[5] The Applicant provided correspondence stating that upon review of the Commission’s concerns they have realised there was a calculation error in the Monday - Saturday component of the rates of pay at Schedule A of the Agreement. The Applicant has provided an undertaking to rectify this calculation error. 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.

[6] This undertaking is not so substantial that if asked to vote again the employees would not approve the Agreement. I am therefore satisfied that the undertaking does not result in substantial change to the Agreement as per s.190(3)(b) of the Act.

[7] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 8 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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