Gambette Alliance Australia Pty Ltd

[2015] FWCA 1229

[2015] FWCA 1229

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Gambette Alliance Australia Pty Ltd T/A Oporto

(AG2014/8365)

GAMBATTE ALLIANCE AUSTRALIA PTY LTD - ENTERPRISE

AGREEMENT 2014.

Fast food industry

COMMISSIONER BULL SYDNEY, 20 FEBRUARY 2015

Application for approval of the Gambatte Alliance Australia Pty Ltd - Enterprise

Agreement2014.

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

Gambatte Alliance Australia 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, Mr Christopher

Agnew on a number of occasions with respect to concerns it had with the Agreement. In

particular, the concerns related to the late filing of the application, employee vote count, and

whether the Agreement satisfied the better off overall test. The Commission held a telephone

conference with the applicant’s legal representative on 16 February 2015 in relation to the

issues outlined above.

[3]        Correspondence was received from the applicant addressing the issues outlined above

on 30 January 2014, 16, 17 and 19 February 2015.

Late application

[4]        Pursuant to 185(3) of the Fair Work Act 2009 (the Act), a single enterprise agreement

application must be made within 14 days after the Agreement is made. The Commission

noted that the application for the approval of the Agreement was lodged on 28 November

2014, with the Agreement being made on 5 November 2014, which is in excess of the

requisite 14 days.

[5] As per s.185(3)(b) of the Act, the Commission requested the applicant provide details

of the circumstances the Commissioner should take into account in deciding whether it is fair

to extend the time for lodging this application.
[2015] FWCA 1229

The applicant submitted that it is fair to extend time as there is no prejudice to the employees

to be covered by the Agreement, as they are being paid in accordance with the Agreement

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which is above the rates of the current instrument . On the basis that employees are in receipt

of the higher rates of pay, the requisite time period will be extended to 28 November 2014.

Employee vote count

[6]        The applicant declared in his statutory declaration (Form F17) at question 2.10, that

there are 10 employees covered by the Agreement, 10 employees cast a valid vote and 0

(none) employees voted to approve the Agreement. The Commission requested that the

applicant address this issue.

[7]        The applicant submitted that this was a typographical error, and submitted an amended

F17 which states that 10 out of the 10 employees voted to approve the Agreement.

Better off overall test (BOOT)

[8]        With respect to the BOOT, the Commission noted that the following entitlements

under the Agreement were lower when compared to the Fast Food Industry Award 2010 (the

Award), being the relevant award for the purposes of the BOOT. The Commission requested

the applicant demonstrate how employees would be better off overall under the Agreement

when they would receive higher entitlements under the Award.

Annual leave loading

[9]        With respect to clause 5.1 - Annual leave, the Commission notes that the Agreement

does not provide annual leave loading. The Commission requested the applicant address this

issue.

[10]      The applicant submitted that the higher hourly rate of pay under the Agreement

incorporates an annual leave loading entitlement.

Meal Allowance

[11]      With respect to clause 4.2.4- Meal Allowance, the Agreement provides a lesser meal

allowance than the Award.

Undertaking

[12]      At the request of the Commission, the applicant has provided an undertaking which

provides employees with a meal allowance that is equivalent to the meal allowance provided

under the Award.

[2015] FWCA 1229

Penalties

[13]      The Commission notes that the Agreement does not provide penalties for public

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holidays and weekends.

[14]      On 30 January 2015, the applicant submitted that the higher hourly rate of pay

compensated for the removal of penalties under the Agreement and provided an undertaking

to increase the hourly rate of pay by 1.62%.

[15]      The Commission was not satisfied that the applicant’s proposed undertaking satisfied

the BOOT and requested further correspondence from the applicant to address the

Commission’s concerns with regard to the BOOT, and in particular those employees who

worked the majority of their hours on the weekend.

Undertaking

[16]      The applicant has provided an undertaking with further increased rates of pay and an

employee reconciliation clause which states that upon an employee’s employment

anniversary date, or termination of employment, an employee is entitled to request a

reconciliation to establish whether any amount paid to them for work performed under the

Agreement is less than what they would have received for work performed under the Award.

[17]      Where such reconciliation establishes that the employee has been paid less under the

Agreement, the employer will reimburse the employee for the difference between the amount

paid under the Award and the amount paid under the Agreement.

[18]      Further, the applicant has provided an undertaking which states that the hourly rates

under the Agreement will increase over the nominal period of the Agreement in accordance

with the Annual Wage Review Decisions of the Wage Panel of the Fair Work Commission.

[19]      The undertakings are taken to be a term of the Agreement. A copy of the undertakings

are attached at Annexure A.

[20]      The undertakings are not so substantial that if asked to vote again the employees who

voted would not approve the Agreement. I am therefore satisfied that the undertakings do not

result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[21]      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.

[22]      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 1 January 2017.

[23] This decision is to be brought to the attention of employees by the applicant, noting

the rights for employees arising out of the reconciliation undertaking.
[2015] FWCA 1229

COMMISSIONER

[2015] FWCA 1229

Annexure A

[2015] FWCA 1229

[2015] FWCA 1229

Printed by authority of the Commonwealth Government Printer

<Price code A, AE412719 PR561259>

1

Being the AK & GSJ Pty Ltd – Enterprise Agreement 2012

2

See clause 5.7.1- Payment for work on public holidays

3

See clause 3.2- Wages