Delfront Pty Ltd T/A Boost Juice Colonnades

[2014] FWCA 3029

[2014] FWCA 3029

FAIR WORK COMMISSION

DECISION

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

Delfront Pty Ltd T/A Boost Juice Colonnades
(AG2014/5143)

DELFRONT PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER BULL	SYDNEY, 8 MAY 2014

Application for approval of the Delfront Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Delfront Pty Ltd Enterprise Agreement (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 notes that the Agreement provides for a nominal expiry date of 30 June 2014, meaning that the Agreement’s nominal expiry date occurs in just over one month. The Commission wrote to the Applicant on 10 April 2014 via its legal representative, National Retail Association (NRA), to request correspondence as to what was communicated to the employees with respect to the nominal expiry date in the Agreement.

[3] The NRA sent correspondence on 11 April 2014 and stated that the Employer being Delfront Pty Ltd T/A Boost Juice Colonnades had confirmed that the Agreement was reviewed comprehensively ‘page by page’ during team meetings, covering all provisions in the document. A copy of correspondence between the NRA and the Employer was attached to the correspondence confirming this. No further information was provided in relation to the nominal expiry date.

[4] On 16 April 2014, the Commission advised the NRA and the Employer that it had concerns relating to whether the Agreement had been genuinely agreed to pursuant to s.188 of the Act. The Commission also drew to their attention the decision ENM Group Pty Ltd [2013] FWC 3035.

[5] The matter was listed for a telephone conference on 29 April 2014. The NRA and the Employer both appeared via telephone.

[6] During the conference the Commission advised the NRA and the Employer that while the penalty rates currently provided for under the Agreement are consistent with the Fast Food Industry Award 2010 (the Award) transitional penalty rates at the time of lodgement, calculations undertaken demonstrate that as the Agreement penalty rates and casual loading do not transition to the Award rates after 30 June 2014, they would fall below the modern award penalty rates and employees would not be better off overall.

[7] The Employer and the NRA were unable to provide any submission during the conference in relation to what had been told to employees in respect to the transitional rates and the nominal expiry date.

[8] During the conference the Employer and the NRA advised that they would be willing to provide an undertaking to the Commission to ensure that employees would be better off overall after 30 June 2014.

[9] On 30 April 2014, the Commission prepared a draft undertaking which was sent to the Employer and the NRA and advised that the proposed undertaking would satisfy the Commission’s concerns.

[10] On 6 May 2014, the NRA advised that after consultation with the Employer, they would be prepared to provide some alternative wording in relation to the undertaking.

[11] The Employer has provided an undertaking that reflects the relevant penalties that will apply from 1 July 2014 under the Award and undertakes that from the first full paid period on or after 1 July 2014, it will apply those penalties.

[12] Upon review of the undertaking I am satisfied that employees would be better off overall under the Agreement.

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

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 15 May 2014. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code G, AE408023  PR550385>