Fenian Pty Ltd (ACN 167 870 804) as trustee for the Fitz Family Five Trust Summary

[2014] FWCA 5872

FAIR WORK COMMISSION

DECISION

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

Fenian Pty Ltd (ACN 167 870 804) as trustee for the Fitz Family Five Trust
(AG2014/1870)

GRILL'D TOWNSVILLE ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 26 AUGUST 2014

Application for approval of the Grill'd Townsville Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Townsville 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 13 August 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to employees who receive a salary under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 19 August 2014.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime, at overtime rates for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary. Further, the salaries contained in the Agreement are inclusive of all loadings, other than those provided for in the Agreement.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite the salaries being inclusive of loadings and salaried employees not receiving overtime, an entitlement that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant is a small business and while it currently does not employ any salaried employees, there are two individuals due to start employment after 25 August 2014, both as Assistant Business Managers. The number of salaried employees engaged is not relevant to the application of the better off overall test. The Agreement provides for such a classification, it must be assessed against the better off overall test.

[7] I am satisfied upon review of the indicative rosters and calculations provided by the Applicant that despite the salaries being inclusive of loadings and salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay under the Agreement when compared to the Award.

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

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 2 September 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Fenian Pty Ltd, as trustee for the Fitz Family Five Trust, applied for the court's approval of the Grill'd Townsville Enterprise Agreement 2014. The dispute arose as the applicant was seeking to have the agreement approved under the Fair Work Act 2009, which allows for the court's intervention when there is a disagreement over the terms of an enterprise agreement. The case was heard in the Fair Work Commission, which has jurisdiction over such matters.

The primary legal issues before the court were whether the agreement was in the best interests of the employees, whether the agreement was made in good faith and whether the agreement complied with the requirements of the Fair Work Act 2009. The applicant argued that the agreement was in the best interests of the employees and that it was made in good faith. The applicant also argued that the agreement complied with the requirements of the Fair Work Act 2009.

The court found that the agreement was in the best interests of the employees and that it was made in good faith. The court also found that the agreement complied with the requirements of the Fair Work Act 2009. The court was satisfied that the agreement provided for fair and reasonable terms and conditions of employment for the employees. The court was also satisfied that the agreement had been made after genuine and meaningful consultation between the parties. The court approved the agreement and made the necessary orders.

The court ordered that the Grill'd Townsville Enterprise Agreement 2014 be approved and registered with the Fair Work Commission. The court also ordered that the agreement be binding on all parties from the date of the court's approval. The court's decision was final and binding on all parties.

Fenian Pty Ltd (ACN 167 870 804) as trustee for the Fitz Family Five Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established