EI Administrative Services Pty Ltd
[2014] FWCA 4305
•30 JUNE 2014
[2014] FWCA 4305 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
EI Administrative Services Pty Ltd
(AG2014/983)
EI RESTAURANT SERVICES ENTERPRISE AGREEMENT 2014
Fast food industry | |
COMMISSIONER BULL | PERTH, 30 JUNE 2014 |
Application for approval of the EI Restaurant Services Enterprise Agreement 2014.
[1] An application has been made for approval of an enterprise agreement known as the EI Restaurant Services Enterprise Agreement 2014 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
[2] On 14 and 27 May and 11 June 2014, the Commission sent correspondence to the Applicant outlining a number of concerns it had with certain aspects of the Agreement. These concerns related to the coverage of the Agreement, minimum engagement of casuals, superannuation, rates of pay and loaded wage rates.
[3] Correspondence was received from the Applicant on 21 May, and 2nd and 25 June 2014.
Rates of pay
[4] The Commission notes that clause 10 - Remuneration, and in particular sub clause 10.5 of the Agreement provides various wage schedules and that employees will be notified at the commencement of their employment which wage rates apply to them. In correspondence with the Applicant, the Commission sought to identify how the relevant schedule is determined.
[5] The Applicant submits there are two sets of rate structures, the first being Monday to Sunday with a separate public holiday rate structure (first structure), and the second being a Monday to Friday arrangement with a separate weekend and public holiday rate structure (second structure). The employer will engage employees who regularly work their rostered shifts across all seven days of the week in accordance with the first structure and all other employees with the second structure.
Undertakings
Coverage of the Agreement
[6] In its correspondence to the Applicant, the Commission requested further information outlining the scope of employees and the industries this Agreement sought to cover as it was unclear at clause 2 - Duration & Scope of the Agreement.
[7] The Applicant advised the scope of the Agreement covers employees currently employed by EI Administrative Services Pty Ltd (the Applicant) in the classifications set out in Schedule A of the Agreement. The classifications in Schedule A cover employees working in the restaurant industry and employees working in the fast food industry.
[8] The Applicant stated that the Agreement will cover the nine employees currently engaged by the Applicant in the restaurant services industry as well as prospective restaurant services employees and fast food services employees.
[9] The Commission advised the Applicant of the difficulty of determining whether an employee will be better off overall when compared to the Fast Food Industry Award 2010 (Fast Food Award), where there are both fast food services employees and restaurant services employees and where rates of pay are inclusive of annual leave loading and clothing allowance.
[10] The Applicant submitted a number of indicative rosters and calculations to demonstrate that the restaurant services employees and prospective employees engaged in fast food services are better off overall under the Agreement when compared to the Restaurant Industry Award 2010 (the Restaurant Award) and the Fast Food Award.
[11] The Applicant has provided an undertaking with respect to clause 10 - Remuneration of the Agreement, that fast food services employees will not be disadvantaged over the life of the Agreement when their terms and conditions under the Agreement are compared to the Fast Food Award.
[12] Further undertakings have been provided by the Applicant with respect to clause 10 of the Agreement, that it will conduct a reconciliation of the remuneration employees receive on an annual basis to determine whether the remuneration they have received for work performed under the Agreement (in the preceding year) is less than the employee would have received under the relevant modern award. The Applicant has undertaken that where reconciliation establishes an employee has been paid less under the Agreement than the relevant modern award, that employee will have the balance reimbursed.
Hours of work
[13] The Commission notes clause 7 - Hours of Work, and in particular sub clause 7.3 of the Agreement provides that employees will be engaged for a minimum of two hours per rostered shift. The Fast Food Award being the relevant modern award for the purpose of the better off overall test with respect to fast food services employees provides that the minimum daily engagement of a casual employee is three hours.
[14] The Applicant has provided an undertaking that sub clause 7.3 of the Agreement will be amended to specify that a minimum three hour engagement per rostered shift will apply to casual fast food services employees.
Superannuation
[15] In its correspondence to the Applicant the Commission noted that clause 15 - Superannuation, and in particular, sub clause 15.2 of the Agreement does not name the employer’s default superannuation fund and thus does not satisfy the requirements of section 194(h) of the Act.
[16] In response to the Commission’s request for clarification of this matter, the Applicant has advised that the default superannuation fund is MLC Super.
Annual leave
[17] The Commission noted in its correspondence to the Applicant that the Agreement at clause 10 - Remuneration, and in particular sub clause 10.8, provides for a loaded wage rate inclusive of annual leave and personal leave.
[18] The Full Bench decision in Canavan Building Pty Ltd [2014] FWCFB 3202 held that provisions that allow annual leave to be incorporated into the hourly rate of pay is inconsistent with s.55(1) and s.93 of the Act.
[19] The Applicant has provided an undertaking that clause 10.8 will be void and have no legal effect.
[20] Upon review of the Applicant’s correspondence, including the indicative rosters and calculations it has provided and the various undertakings, I am satisfied that the employees will be better off overall under the Agreement.
[21] These undertakings are taken to be a term of the Agreement. A copy of these undertakings is attached at Annexure A.
[22] I am satisfied that each of the requirements of sections 186, 187and 188 of the fact as are relevant to this application for approval have been met.
[23] The Agreements is approved. In accordance with section 54(1), the Agreement will operate from 7 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.
COMMISSIONER
Annexure A
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