Con Cura Pty Ltd (ACN 600 199 424) as trustee for the SRO Family Trust T/A Grill'd Neutral Bay

[2014] FWCA 7717

FAIR WORK COMMISSION

DECISION

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

Con Cura Pty Ltd (ACN 600 199 424) as trustee for the SRO Family Trust T/A Grill'd Neutral Bay
(AG2014/7671)

GRILL'D NEUTRAL BAY ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 30 OCTOBER 2014

Application for approval of the Grill'd Neutral Bay Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Neutral Bay Enterprise Agreement 2014 (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 14 October 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to employees who receive a salary under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 28 October 2014.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary. Further, the salaries contained in the Agreement are inclusive of all loadings, other than those provided for in the Agreement.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite the salaries being inclusive of loadings and not receiving overtime, entitlements that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant is a small business and only recently commenced employing salaried employees when it engaged an Assistant Business Manager on 28 September 2014.

[7] The number of salaried employees engaged is not relevant to the application of the better off overall test. The Agreement provides for such a classification, it must be assessed against the better off overall test.

[8] The Applicant has provided calculations based on salaried employees working one to two hours of overtime every week. I am satisfied upon review of the indicative rosters and calculations provided by the Applicant that despite the salaries being inclusive of loadings and salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay under the Agreement when compared to the Award.

[9] 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.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 6 November 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[11] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Con Cura Pty Ltd, sought approval of the Grill'd Neutral Bay Enterprise Agreement 2014. The dispute involved whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Fair Work Commission was the court before which the matter was heard. The legal issues before the Commission were whether the agreement provided for appropriate minimum terms, had been made in good faith, and whether it met the criteria for approval under the Fair Work Act. The Commission considered whether the agreement contained all the required minimum terms, whether it was made in good faith, and whether it provided for a fair and efficient workplace.

The Commission found that the agreement contained all the required minimum terms and was made in good faith. It further found that the agreement met the criteria for approval under the Fair Work Act. The Commission considered the evidence and submissions from both parties and was satisfied that the agreement provided for a fair and efficient workplace. The Commission approved the agreement, finding that it met the statutory requirements for approval. The applicant was successful in its application for approval of the Grill'd Neutral Bay Enterprise Agreement 2014.

The final orders of the Commission were that the Grill'd Neutral Bay Enterprise Agreement 2014 be approved as a registered agreement under the Fair Work Act 2009. The applicant was also ordered to take all necessary steps to give effect to the approved agreement. The respondent was ordered to comply with the terms of the approved agreement. The decision of the Commission was binding on both parties and could not be appealed except on limited grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established