Deli Devine Subiaco Pty Ltd T/A Deli Devine

[2015] FWCA 6070

[2015] FWCA 6070

FAIR WORK COMMISSION

DECISION

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

Deli Devine Subiaco Pty Ltd T/A Deli Devine
(AG2015/3973)

DELI DEVINE ENTERPRISE AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 22 SEPTEMBER 2015

Application for approval of the Deli Devine Enterprise Agreement 2015

[1] An application has been made for the approval of an enterprise agreement known as the Deli Devine Enterprise Agreement 2015 (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 Fair Work Commission (the Commission) wrote to the applicant on 31 August 2015 with respect to the better off overall test (BOOT) as per s.186 of the Act. In particular, the Commission was concerned with:

i. Reduced minimum engagement period for casuals;

ii. Increased span of ordinary hours; and

iii. Reduced Saturday penalty rates when compared to the General Retail Industry Award 2010 (the Award), being the relevant award for the purposes of BOOT.

[3] The applicant provided undertakings and written advice on 2 September 2015 which address the concerns raised. Indicative rosters and calculations between the Award and the Agreement were also submitted in support of the application.

Reduced minimum engagement period for casuals

[4] With respect to cl. 9.3 of the Agreement – Casual Employees, no minimum daily engagement period was specified. Under the Award casual employees are entitled to a minimum 3 hour daily engagement period.

Undertaking in relation to the minimum engagement period

[5] The applicant has provided an undertaking such that the minimum engagement period at 13.4 of the Award is applicable to the Agreement.

Ordinary Hours

[6] With respect to cl. 12.1(h)(c) of the Agreement – Hours of Work, the span of hours are greater than that specified at 27.2(a) of the Award.

[7] The applicant was advised that this may impact on overtime and penalty entitlements for employees, and may therefore mean that an employee under the Agreement may not be better off under the Agreement than if they were under the Award.

Undertaking in relation to the minimum engagement period

[8] The applicant has provided an undertaking which amends the span of ordinary hours that conforms with the Award.

Reduced Saturday penalty rates

[9] With respect to Saturday work, the Commission noted that at cl. 13.2(a) of the Agreement, employees receive a reduced penalty loading in comparison to the Award, being 10% as opposed to 25% under the Award.

[10] Additionally, casual employees under the Agreement also receive a reduced Saturday penalty, being 20% (inclusive of casual loading), when under the Award; casual employees would receive an additional 10% on top of the casual loading for ordinary hours worked on a Saturday.

[11] The applicant was advised that employees who work regular, significant Saturday hours may not be better off under the Agreement, and that the rates of pay under the Agreement may not adequately compensate for the reduced Saturday penalty without regular hours being worked during the week.

Undertakings in relation to Saturday penalty rates

[12] The applicant has provided undertakings to the effect of :

1. Increasing the rate of pay for shop assistants;

2. Not to roster employees to solely perform work on weekends or public holidays, and where it is necessary to do so, the applicant will ensure that the employee will be better off by way of reconciliation, and that the applicant will provide the employee, within a week of completing the shift, a copy of monetary comparisons between the Agreement and the Award.

Conclusion

[13] The undertakings provided by the applicant address the Commission’s concerns. Taking into account the higher rates of pay under the Agreement and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement when compared to the Award.

[14] The undertakings provided by the applicant are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure A.

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

[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 undertaking does not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 29 September 2015. The nominal expiry date of the Agreement is 30 May 2019.

[18] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

DEPUTY PRESIDENT

Annexure A

Fair Work Commission
Title of Matter:	Application by Deli Devine Subiaco Pty Ltd T/A Deli Devine
Section:	s.185 – Application for approval of a single-enterprise agreement.
Subject:	Application by Deli Devine for the approval of the Deli Devine Enterprise Agreement 2015
Matter Number:	AG2015/3973

Deli Devine Subiaco Pty Ltd T/A Deli Devine Undertakings

Deli Devine Subiaco Pty Ltd T/A Deli Devine (Deli Devine) undertakes to apply the following provisions as if they were part of the Deli Devine Enterprise Agreement 2015 (“the Agreement”).

1 The Agreement shall be taken to include clause 13.4 of the General Retail Industry Award 2010 in relation to the minimum daily engagement of a casual employee.
2 With respect to clause 17 of the Agreement, the Applicant undertakes to change the Base Rate of Pay for a Shop Assistant to $19.95.
3 The Applicant undertakes to not roster employees to solely perform work on a weekend or public holiday. Where, due to operational requirements, this was necessary, the Applicant undertakes the following:
3.1 Where an employee is required to perform regular work on a Saturday, public holiday or evenings after 6:00 pm, the Applicant will ensure that that the employee is better off overall (based on his/her overall terms and conditions of employment) when compared against the relevant award that would otherwise apply but for the operation of the Agreement.
3.1.1 In calculating the rate of pay the Applicant will take into account:
(a) the relevant rate of pay that would be applicable to the employee under the relevant award;
(b) the hours and arrangement of work that the employee will be required to work;
(c) the applicable overtime and penalty rates under the relevant award;
(d) the applicable allowances and loadings under the relevant award;
(e) in the case of a casual employee the casual loading under the relevant award; and
(f) any other provision of the relevant award which would provide the employee with a monetary entitlement or compensate them for an expense.
3.2 The Applicant will provide the employee, within a week of completing the shift, a copy of their calculations (identifying the relevant award and classification) comparing the monetary entitlements that he/she would have received under the relevant award to those proposed
The Applicant undertakes, that no stores open for trading prior to 7:00 a.m. Monday to Sunday with no stores open for trading between 9:00 p.m. to Midnight.

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