DECISION

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

Four Camels Pty Ltd
(AG2014/10229)

FOUR CAMELS PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 20 FEBRUARY 2015

Application for approval of the Four Camels Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the

Four Camels Pty Ltd 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] The Commission wrote to the Applicant via its legal representative on 19 December 2014 and 12 January 2015 with respect to concerns it had with the Agreement. In particular, the concerns related to penalties, annual leave loading, and uniforms.

[3] Correspondence was received from the applicant on 8 and 23 January 2015.

Penalties

[4] The Commission notes that the Agreement does not provide penalty loadings for weekends under Schedule A - Minimum rates of pay of the Agreement. The Commission requested correspondence to demonstrate how employees would be better off overall under the Agreement, when employees would be entitled to a weekend penalty loading under the Fast Food Industry Award 2010 (the Award) being the relevant award for the purposes of the better off overall test,

[5] The applicant submits that employees are afforded a much higher hourly rate of pay which compensates for the loaded penalty rates under the Agreement. The applicant has provided a number of calculations and indicative rosters to demonstrate this.

Annual leave loading

[6] With respect to clause 17- Annual leave, and in particular sub clause 17.3, the Commission notes that no annual leave loading is payable under the Agreement. The Commission requested the applicant to address this concern with regard to the better off overall test.

[7] The applicant submits that annual leave loading is incorporated into the hourly rates of pay and provided an analysis of calculations in conjunction with a number of indicative rosters to demonstrate this.

Undertaking

Uniforms

[8] With respect to clause 15 - Uniforms, and in particular sub clause 15.1, the Commission noted that employees were to purchase their own work uniform.

[9] In response to the Commission, the applicant has provided an undertaking to provide each employee with the corporate uniform upon commencement of employment.

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

[11] 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.

[12] 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.

[13] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 27 February 2015. The nominal expiry date of the Agreement is 4 years from the date of operation

[14] This decision should be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Four Camels Pty Ltd applied to the Fair Work Commission for approval of the Four Camels Pty Ltd Enterprise Agreement 2014. The application was opposed by the Building Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the CFMEU argued that the agreement did not meet the "better off overall test" and contained provisions that were not fairly negotiated.

The legal issues before the Commission included whether the agreement was made in good faith and whether it met the statutory requirements for approval under the Fair Work Act. The Commission had to determine if the agreement provided employees with a direct or indirect financial benefit that was better than the outcome that would have been achieved through the applicable awards and whether the agreement had been fairly negotiated. The Commission also considered whether the agreement contained any provisions that were contrary to public policy or not in the best interests of the employees.

The Commission found that the agreement was made in good faith and met the statutory requirements for approval. The agreement provided employees with a direct financial benefit and contained provisions that were fairly negotiated. The Commission rejected the CFMEU's argument that the agreement did not meet the "better off overall test" and found that the agreement provided employees with a direct or indirect financial benefit that was better than the outcome that would have been achieved through the applicable awards. The Commission also found that the agreement did not contain any provisions that were contrary to public policy or not in the best interests of the employees.

The Commission approved the Four Camels Pty Ltd Enterprise Agreement 2014. The CFMEU's opposition was dismissed, and the agreement was registered under the Fair Work Act. The decision provides guidance on the application of the "better off overall test" and the requirements for approving an enterprise agreement.

Four Camels Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established