Earthfield Pty Ltd t/as Bakers Delight Diamond Creek, Bakers Delight St Helena & Bakers Delight Laurimar Enterprise Agreement 2009

[2010] FWA 5752

[2010] FWA 5752

FAIR WORK AUSTRALIA

DECISION

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

Earthfield Pty Ltd T/A Bakers Delight Diamond Creak, Bakers Delight St Helena & Bakers Delight Laurimar
(AG2009/14470)

EARTHFIELD PTY LTD ENTERPRISE AGREEMENT 2009

Food, beverages and tobacco industry

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 AUGUST 2010

Application for approval of the Earthfield Pty Ltd Enterprise Agreement 2009.

[1] I had a number of significant issues for resolution when I initially considered the terms of the Earthfield Pty Ltd Enterprise Agreement 2009 (the Agreement). I outlined some of my concerns in correspondence dated 7 April 2010. This application was listed on 13 April and 1 July 2010 when I elaborated on these issues to the parties. I confirmed this in correspondence dated 9 July 2010.

[2] These discussions and the employer’s submissions in response involved a number of clauses in the Agreement. These included the purported “flexible” ordinary hours of work, the “requirement” to allocate weekend and public holiday hours fairly and equitably amongst employees, voluntary additional hours and overtime rates, and the average hours of weekend work. There was also an issue regarding the employer’s compliance with s180(5) of the Fair Work Act 2009 (the Act).

[3] In response various undertakings have been provided regarding the Better Off Overall Test and in this regard I have considered the final submissions of Enterprise Initiatives Pty Ltd (EI Legal) dated 14 July 2010.

[4] On balance I have decided that I should not rely on the undertakings provided by the employer. The information provided to me during the course of my examination of the Agreement has been unreliable. Submissions as to the effect and application of various clauses were made in response to concerns identified by me. When those submissions were examined I found them to be inaccurate, misleading or contradictory. Following identification of these issues further submissions were made, but no satisfactory explanation for the initial inaccuracies, misleading material and contradictions was provided.

[5] For example, completed rosters were provided following the employer’s submission that hours worked on Saturday and Sunday would average 4.82 hours and 4.83 hours respectively. Contrary to the employer’s submissions employees were rostered to work more hours over the weekend than during the week. Further analysis also revealed a number of employees whose work was rostered predominantly over the weekend and who were therefore likely to be significantly disadvantaged.

[6] I have considered the response of this employer to its obligations to provide accurate information to this Tribunal. I am not satisfied that the material regarding the changes to the Agreement and the undertakings would be provided to the employees in a reliable manner. I am not satisfied that the undertakings would be met by the employer.

[7] Section 190(3) of the Act is set out below:

“Undertakings

(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.”

[8] The Agreement as it now stands, having regard to the extent of the proposed changes and the undertakings provided, would be so renovated as to be an entirely different agreement to that to which the employees originally agreed. In this circumstance I am not satisfied that employees would have any present understanding of the terms of the Agreement as renovated and its relationship to what was agreed. I am not satisfied that the effect of accepting the employer’s undertaking would not be to result in substantial changes to the agreement as contemplated by s190(3) of the Act.

[9] In reaching this conclusion I have had regard to the nature of the industry in which this enterprise operates and the likely demographic of the employees. They are likely to be young. This has influenced my conclusion regarding the undertakings provided.

[10] In addition, whilst the final undertakings provided to this Tribunal went some way to resolving my concerns, particularly those in relation to Sunday work, I am not satisfied that the Agreement passes the Better Off Overall Test. I have residual concerns regarding allowances, accident makeup pay and other award benefits, as well as the loaded rate of pay which compensates for annual leave and personal leave. On balance I am not satisfied that employees would be better off overall under the terms of this Agreement.

[11] Should the parties require further particulars in relation to my concerns regarding the Agreement’s failure to pass the Better Off Overall Test I will provide further reasons. I have however concluded that, having regard to my other conclusions regarding this Agreement considered with the employer’s undertakings, that those particulars are not presently required. I will provide them if a further request is made.

[12] For these reasons I have decided to refuse to approve the Agreement.

SENIOR DEPUTY PRESIDENT

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