DB Organisation Pty Ltd ATF Black Family Trust

[2013] FWCA 8995

[2013] FWCA 8995

FAIR WORK COMMISSION

DECISION

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

DB Organisation Pty Ltd ATF Black Family Trust
(AG2013/2976)

GRILL'D FAIRFIELD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 15 NOVEMBER 2013

Application for approval of the Grill'd Fairfield Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Fairfield 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] On 6 November 2013, the Commission alerted the Applicant via its representative to a number of concerns it had with aspects of the Agreement. These issues concerned overtime with respect to salaried employees and uniforms under the Agreement.

[3] Correspondence was received from the Applicant on 13 November 2013.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime, at overtime rates for salaried employees. The Applicant declared in its Form F17 - Employers declaration in support of application for approval of enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary.

[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 not receiving overtime, an entitlement 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 that employees a very limited number of salaried employees, and further, that whilst the Agreement provides an Assistant Business Manger with a minimum salary of $47,487 per annum, the employer actually provides the employee with a higher remuneration of $50,000 per annum. This submission made by the Applicant’s representative is not a submission that I can take into consideration, as I must assess the Agreement, for the purpose of the better off overall test, as at the test time, that includes the terms and conditions set out in the Agreement at the time the application for approval of the agreement by the Commission is made. 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. Additionally, payments made outside the Agreement, that has no legislative force are not able to be considered under the better off overall test.

[7] However, I am satisfied upon review of the roster and calculations provided by the Applicant that despite salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay, although the margin is minimal.

[8] With respect to clause 24 - Uniforms, in particular subclause 24.1, the Agreement states that employees are responsible for the condition and cleanliness of their t-shirt during their employment. Pursuant to clause 19.2(b) of the Award, it provides for a weekly allowance for full-time employees and a shift allowance for part-time or casual employees who are required to launder any special uniform, dress or other clothing.

[9] The Applicant has advised the Commission that the wage rates under the Agreement have taken into account a value for the uniform allowance leaving employees better off overall.

[10] 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.

[11] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 22 November 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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