Collins Restaurants Management Pty Ltd & Collins Restaurants NSW Pty Ltd

[2014] FWCA 6251

[2014] FWCA 6251

FAIR WORK COMMISSION

DECISION

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

Collins Restaurants Management Pty Ltd & Collins Restaurants NSW Pty Ltd
(AG2014/6545)

KFC TEAM MEMBERS' ENTERPRISE AGREEMENT - QUEENSLAND AND TWEED HEADS (NSW) 2014 - 2017

Fast food industry
COMMISSIONER BULL	SYDNEY, 9 SEPTEMBER 2014

Application for approval of the KFC Team Members' Enterprise Agreement - Queensland and Tweed Heads (NSW) 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the KFC Team Members' Enterprise Agreement - Queensland and Tweed Heads (NSW) 2014 - 2017 (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] On 18 July 2014, the Commission wrote to the Applicant via its representative and The Australian Workers’ Union (AWU) and the Shop, Distributive and Allied Employees Association (SDA), as bargaining representatives for the Agreement, in relation to concerns it had with the Agreement. In particular, the concerns related to the dispute settlement procedure, penalties and uniform allowance.

[3] Correspondence was received from the Applicant on 25 July and 4 September 2014.

Undertakings

Dispute settlement procedure

[4] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 6.1 - Grievance and dispute settling procedure, of the Agreement. In particular, that the dispute settlement procedure in the Agreement will apply to any disputes that arise in relation to the National Employment Standards as per s.186(6)(a)(ii) of the Act.

Better off overall test

[5] In its correspondence to the Applicant and the SDA and the AWU, the Commission noted that the Agreement provides for a number of penalties that are less than the penalties provided under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. In particular, the Agreement provides a lesser penalty with respect to late night and early morning penalties and public holidays. Further, the Agreement does not provide weekend penalties that would be afforded to employees under the Award.

[6] In addition to these concerns, the Commission also noted that the Agreement provides that laundering of uniforms will be at the employee’s expense, whereas, the Award provides for a special clothing allowance for full-time employees of $6.25 per week and part-time or casual employees an allowance of $1.25 per shift.

[7] The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate how employees are better off overall under the Agreement.

[8] With respect to the uniform allowance, the Applicant submits that the additional 9% buyout provided for at sub clause 9.1.1(b) of the Agreement accommodates the allowance employees would have received under the Award.

[9] With respect to the penalty rates, the Applicant provided a number of indicative rosters and calculations to demonstrate employees are better off overall under the Agreement. Upon review of the rosters and calculations the matter was listed for a telephone conference.

[10] The Commission held a conference via telephone on 3 September 2014, to discuss concerns it had based on the calculations and correspondence that had been sent to the Commission on 25 July 2014. In particular, the calculations that had been provided to the Commission demonstrated that some employees were not better off overall, where the employees work the majority of hours on weekends.

[11] Upon request from the Commission, the Applicant has provided an undertaking to ensure that all new team members employed after the date of approval of this Agreement will be rotated through the week or the applicable roster cycle to ensure that at all times they are able to benefit from the 9% buyout of penalty rates and so that they will not be disadvantaged when compared to the penalty rates for weekend work as provided for in the Award.

[12] A further undertaking has been provided by the Applicant that all team members who are rostered for ordinary hours between the hours of 12:30am to 5:00am at the Kangaroo Point Restaurant shall continue to receive a 50% penalty rate for such hours and that the employer has no intention to expand late trading during these hours beyond Kangaroo Point.

[13] Upon review of the correspondence and undertakings, I am satisfied the Agreement meets the better off overall test.

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

[15] Pursuant to s.190(4) of the Act, the SDA and the AWU have been made aware of the undertakings provided. The bargaining representatives have not advised of any concerns with the undertakings provided.

[16] 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.

[17] The Agreement will cover all team members (level 1 and level 2) employed by the employer in all KFC restaurants throughout Queensland and Tweed Heads in New South Wales. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

[18] 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.

[19] The Australian Workers’ Union and the Shop, Distributive and Allied Employees Association being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[20] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 16 September 2014. The nominal expiry date of the Agreement is 30 June 2017.

[21] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code G, AE410007  PR555239>