EI Administrative Services Pty Ltd - [2014] FWCA 4305

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: EI Administrative Services Pty Ltd [2014] FWCA 4305
Case: [2014] FWCA 4305
Decision Date: 30 JUNE 2014

CaseChat Overview and Summary

EI Administrative Services Pty Ltd applied to the Fair Work Commission for approval of the EI Restaurant Services Enterprise Agreement 2014. The application was made under section 186 of the Fair Work Act 2009. The dispute concerned the terms of the proposed agreement, particularly regarding employee entitlements and classification.

The central legal issues the Commission needed to resolve were whether the agreement provided for the fair and reasonable entitlements of employees, and whether it complied with the requirements of the Fair Work Act. This included assessing whether the agreement was procedurally sound, if it met the requirements of genuine agreement, and if the terms were fair and reasonable.

The Commission considered the submissions of both parties and the evidence provided. It found that the agreement was procedurally sound and that there was genuine agreement between the parties. The Commission also determined that the terms of the agreement were fair and reasonable, taking into account the specific circumstances of the restaurant services industry. Consequently, the Commission approved the agreement under section 186 of the Fair Work Act.

The Commission's final order was the approval of the EI Restaurant Services Enterprise Agreement 2014, which is now a registered agreement under the Fair Work Act. This decision ensures that the terms of the agreement will apply to the employees covered by it, providing a framework for their employment conditions.

Orders