Compass Group (Australia) Pty Ltd T/A Compass Group

[2020] FWCA 4934

[2020] FWCA 4934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Compass Group (Australia) Pty Ltd T/A Compass Group
(AG2020/2240)

COMPASS GROUP (ESS REMOTE – SOUTH AUSTRALIA AND TASMANIA) ENTERPRISE AGREEMENT 2020

Hospitality industry
COMMISSIONER PLATT	ADELAIDE 16 SEPTEMBER 2020

Application for approval of the Compass Group (ESS Remote - South Australia and Tasmania) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Compass Group (ESS Remote - South Australia and Tasmania) Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Compass Group (Australia) Pty Ltd T/A Compass Group (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 13 August 2020.

[3] On 19 August 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] On 14 September 2020, I conducted a Hearing to finally determine the application.

[5] The Australian Workers’ Union (AWU) contended the Agreement had not been genuinely agreed because the provisions contained in Clause 17.1 of the proposed Agreement which concern the ordinary and customary turnover of labour were inconsistent with s.119(1) of the Act and were not explained to employees. In my view the provisions of Clause 17.1 are not inconsistent with s.119(1) of the Act and if there was any doubt about it, Clause 4.4 would operate to preserve the National Employment Standards (NES) provision. I also find that employees were correctly informed as to the effect of Clause 17.1 of the Agreement.

[6] The second issue in contention was whether Clause 19.6 contemplated an Annualised Wage as detailed in Clause 24 of the Hospitality Industry (General Award 2010) – in which case the better off overall test (BOOT) was to be measured against the relevant Award rate plus 25%. The Applicant has identified that the Annualised Wage contemplated in Clause 19.6 only compensates for the ordinary hours of work and rostered overtime and does not include adhoc overtime. Clause 28.2 provides that adhoc overtime will be the subject of additional payments. The Annualised Wage detailed in Clause 24 of the Award contemplates that employees will not be entitled to any additional overtime of penalty payments at all. On that basis I accepted the Applicant’s submission that the 25% Award uplift is not applicable to the Annualised Wage arrangements detailed in the proposed Agreement despite the naming of that Clause.

[7] Shortly after the hearing the Applicant submitted an amended undertaking in the required form dated 15 September 2020. The undertaking deals with the following topics:

•  Clause 17.3 (Employee leaving during notice period) will not operate in a way that is inconsistent with s.117(2)(b) of the Act.

•  Clause 17.2 (Transfer to lower paid duties) will not operate in a way that is inconsistent with s.117(2)(b) and s.119(2) of the Act.

•  Clause 16.2.2 (Notice of termination by an Employee) of the Agreement will not operate in a way that is inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

•  Clause 24.3.7 (Work Cycle employees) is replaced with the following:

“Overtime rates will be used to calculate the Annualised Wage in relation to any ordinary hours or rostered additional (overtime) hours that are part of the Work Cycle Roster as follows:

(1) where the ordinary hours component of the shift is less than 8 hours, after the ordinary hours component of the shift has been exceeded; or

(2) where the ordinary hours component of the shift is greater than 8 hours, after 8 ordinary hours in each shift.”

•  Clause 19.6.2 (Annualised Wages) is replaced with the following:

“An Annualised Wage must be an amount not less than the total of all the amounts payable to the employee under the Agreement during a 12-month period for working a particular Work Cycle Roster (as defined by clause 24.3) including weekend penalties, rostered overtime and annual leave loading.”

•  Clause 19.6.7 is inserted in Clause 19.6 (Annualised Wages), and reads as follows:

“An Annualised Wage must not result in an employee being paid less over a year (or, if the employee’s employment is terminated before a year is completed, over the period of that employment) than would have been the case if an Annualised Wage had not been paid. If an Annualised Wage paid to an employee has the result mentioned in above at the end of a year or period of employment, the Company must pay the employee the difference.”

•  An employee who is required to operate a fork-lift in the performance of their duties shall be paid an all-purpose allowance of $0.34 per hour or part thereof.

•  Supported wage and Trainee employees will be paid $0.02 per hour above the Hospitality Industry (General) Award 2020 rate.

•  If an employee fails to give the required notice, then they may have no more than one week’s wages deducted.

[8] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[9] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[10] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[11] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 15 September 2024.

COMMISSIONER

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