Dos Frijoles Locos - ME Pty Ltd ATF Clement St Trust T/A Guzman y Gomez Emporium Melbourne

[2015] FWCA 93

[2015] FWCA 93

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreementDos Frijoles Locos - ME Pty Ltd ATF Clement St Trust T/A Guzman y Gomez Emporium Melbourne

(AG2014/8285)

GUZMAN Y GOMEZ DOS FRIJOLES LOCOS ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 8 JANUARY 2015

Application for approval of the Guzman y Gomez Dos Frijoles Locos Enterprise Agreement 2014. Undertaking provided.

[1] An application has been made for approval of an enterprise agreement known as the Guzman y Gomez Dos Frijoles Locos 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 12 December 2014, the Commission wrote to the applicant in relation to queries with the Agreement. The queries were in relation to minimum wage rate schedules at Appendix 1 of the Agreement, the Superannuation provisions at clause 22 of the Agreement and periods of notice indicated at clause 36.2(a) of the Agreement

[3] Correspondence was received from the applicant on 18 December 2014.

Undertakings

[4] With respect to clause 36 - Notice of Termination, and in particular sub clause 36.2(a), the Commission noted that specification of notice periods for permanent employees was omitted. The Commission requested an undertaking specifying notice periods.

[5] The applicant provided an undertaking with respect to sub clause 36.2(a) specifying notice of termination periods pursuant to s.117(3)(a) of the Act.

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

[7] The undertaking is 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.

Superannuation

[8] In correspondence to the Applicant, the Commission sought clarification in relation to clause 22 - Superannuation, and in particular, sub clause 22.4 as to the name of the employer’s default superannuation fund and how it satisfies the requirement of s.194(h) of the Act.

[9] The Applicant has advised the Commission that the default superannuation fund is the Retail Employees Superannuation Trust (REST), which offers a MySuper product.

Minimum Wage Rate Schedules

[10] With respect to the minimum wage rate schedules (the schedules) at Appendix 1 of the Agreement, it was noted that employee positions may be paid on either a salaried or non salaried basis, this was provided in two different schedules titled Option A and Option B. The Commission requested information with respect to the determination of these options.

[11] The applicant submits that the determination of salaried or non salaried positions will be specified in the employee’s letter of engagement, with an expected distinction that management positions will be paid on a salaried basis.

[12] With respect to the two options provided under the schedules, the applicant submits that Option B of the schedule was provided under the Agreement to provide consistency with the Guzman Y Gomez Enterprise Agreement 2012 which covers a number of Guzman Y Gomez Restaurants nationally and that employees are not likely to be engaged under this option.

[13] It was noted that the minimum wage rate schedules provide penalties such as weekend and public holidays, which appear to be less than those provided under the Fast Food Industry Award, (the Award) being the relevant modern award for the better off overall test. The Commission requested correspondence to demonstrate how employees were better off overall with the lesser penalty rates provided under the Agreement.

[14] The applicant submits that the base rates of pay under the Agreement are higher than the Award which compensates for penalty rates being less than the Award. The applicant also notes that it will not be trading on certain public holidays. The applicant has provided a number of indicative rosters to demonstrate employees are better off overall under the Agreement despite the lesser penalty rates.

[15] Upon review of the roster I am satisfied that despite the reduced penalties, employees would be better off overall under the Agreement.

[16] 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.

[17] The Agreement is approved. I accordance with section 54(1), the Agreement will operate from 15 January 2015. The nominal expiry date of the Agreement is 1 March 2018.

COMMISSIONER

Annexure A

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