Grill'd Pty Ltd
[2025] FWC 1097
•17 APRIL 2025
| [2025] FWC 1097 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Grill’d Pty Ltd
(AG2024/4273)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 17 APRIL 2025 |
Application for approval of the Grill’d Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Grill’d Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s185 of the Fair Work Act 2009 (Cth). It has been made by Grill’d Pty Ltd. The Agreement is a single enterprise agreement.
The Shop, Distributive and Allied Employees’ Association (SDA) and the United Workers Union (UWU) were bargaining representatives and both opposed approval of the Agreement. The application for approval was dealt with at hearings on 31 January 2025, 11 February 2025, 14 February 2025 and 6 March 2025. The Applicant and the SDA were granted permission to be legally represented.
After the hearing Grill’d provided an email setting out a consolidation of undertakings previously provided and further undertakings proffered in relation to concerns raised relating to whether the Agreement satisfied the better off overall test and whether the employees genuinely agreed to the Agreement. Sixteen undertakings have been proffered.[1]
Background
The Agreement replaces the Grill’d Enterprise Agreement 2020 (the current agreement) which reached its nominal expiry date on 21 July 2024.
The Agreement covers approximately 4,278 employees. 3,118 of these voted to approve the Agreement, out of 3,319 employees who cast a valid vote. Of the employees covered by the Agreement, approximately 2,774 were under 21 years of age, and 3,862 are part-time employees.
The Agreement covers part-time and full-time employees and Grill’d has offered an undertaking to clarify that it does not and will not employ casual employees for the life of the Agreement.[2] There are three classifications under the Agreement: Team Member, Assistant Business Manager and Business Manager. In addition, at its discretion the employer can appoint a Team Member as a Team Leader in recognition of their seniority and/or experience. Team Members (including Team Leaders) are described as Non-Salaried Employees and Assistant Business Managers and Business Managers are described as Salaried Employees. Salaried Employees receive an annual salary and are not entitled to additional payment for overtime. Non-Salaried Employees receive an hourly rate of pay and are eligible to receive payment for overtime as provided in clause 15 of the Agreement. In addition, employees may, if undertaking an accredited traineeship, be employed as a trainee. Trainees receive lower rates of pay.
Underpinning Modern Award
Grill’d and the SDA contend that the relevant modern award for the purposes of the Better Off Overall test (BOOT) is the Fast Food Industry Award 2020 (the FFI Award). The UWU submits that it is the Restaurant Industry Award 2020.
The fast food industry is defined to mean the industry of taking orders for, preparing and selling (by direct provision to the customer and/or by delivery to the customer’s address):
a)meals, snacks and/or beverages, which are sold to the public primarily to be consumed away from the point of sale;
b)take away foods and beverages packaged, sold or served in such a manner as to allow their being taken from the point of sale to be consumed elsewhere should the customer so decide; and/or
c)food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing primarily a sit-down service inside the catering establishment.
The Restaurant Industry Award covers employers in the restaurant industry and employees within the classification structure. Restaurant industry means restaurants, reception centres, night clubs, cafés or roadhouses and includes catering by a restaurant business and a tea room operated in, or in connection with, a restaurant business. It expressly excludes a restaurant operated in, or in connection with, premises owned or operated by an employer covered by the Fast Food Industry Award 2010.
The UWU led evidence from some employees of Grill’d which included that, from their experience, the majority of customers that attend their stores dine-in and sit down at tables to eat. The UWU also relied on evidence of the number of venues that operate under a restaurant liquor licence conditional upon the predominant activity carried out at all times being the preparation and serving of meals for consumption on the licensed premises. However, the evidence led by Grill’d, in particular the Further Supplementary Witness statement of Mr Alex Kaimakamis, Head of Commercial, was that his review of Grill’d sales revenue data shows that for the last five calendar years, including 2024, take away food sales accounted for approximately 56% of sales revenue.[3] I consider that his evidence outweighs the anecdotal evidence of a small number of witnesses from two outlets.
I am satisfied based on this evidence that Grill’d is in the fast food industry, because it is in the industry of taking orders for, preparing and selling … meals, snacks and/or beverages which are sold to the public primarily to be consumed away from the point of sale.
I have assessed the Agreement against the FFI Award for the purposes of the Better Off Overall test (BOOT).
Are employees Better Off Overall under the Agreement?
The SDA and UWU submit that the Agreement does not pass the Better Off Overall test.
·Are employees financially better off under the Agreement?
Grill’d provided modelling on the financial impact of the Agreement compared to the FFI Award. The modelling was undertaken on two bases: a) what it contends is the ‘outer limits’ of what the Agreement permits; and b) based on rosters of a random selection of employees over a four-week period.
The ‘outer limits’ modelling provided by Grill’d shows a margin ranging from $0.77 to $47.52 per week above the award. [4] The median margin is $4.89 per week.
The sample rosters of employees also shows that each employee is better off overall under the Agreement. The positive benefit under the Agreement for the 14 Team Members and 5 Team Leaders modelled ranges from $5.25 to $161.75 per week with an average of $72.20.[5]
The SDA acknowledges that the modelling demonstrates that employees are better off overall in respect of the financial detriments under the Agreement but contends that when all detriments are taken into consideration, the loaded rates do not pass the BOOT.
The UWU points out that the modelling based on sample rosters assumes that each employee takes the maximum benefit of the $18 free meal, and if this is not taken, or not taken to the full value, some employees are not better off overall, e.g. Team Member TM12 and TM14. Grill’d submits that the modelling based on sample rosters understates the positive differential under the Agreement, because that modelling does not take into account that under the Agreement, employees would also work additional weekday hours which attract higher rates of pay than the award.[6] Grill’d submits that the more relevant modelling is the ‘outer limits’ or ‘worst case’ modelling provided, which shows the earnings under the Agreement to be at least $0.77 cents per week, and a median of $4.89 per week higher than the award. I accept that submission, noting the further undertaking offered by Grill’d.[7] Some employees may be considerably better off under the Agreement, however at least some may only be marginally better off in financial terms.
·Are there non-financial detriments that mean employees are not better off overall under the Agreement?
a)Part-time provisions
The Agreement provides greater flexibility than the award in respect of part-time employment. Part-time employees are required to work less than 38 hours per week averaged over each 8-week period. An undertaking offered by Grill’d reduces this to a 4-week period.[8] They are entitled to reasonably predictable hours, and a minimum of 3 continuous hours on any shift.[9] Additional hours at the ordinary rate of pay can be offered and agreed to by Non-Salaried part-time employees. Employees are able to enter their default availability onto the company’s electronic rostering system, and this availability forms the basis of rostered shifts. Any change to the employee’s availability entered into the system must be made at least a week in advance of the next roster coming into effect and requires approval of their manager. In setting the roster, the Company will consider any study or personal commitments of the employee along with operational needs and availability and capability of other staff.
The Full Bench in SDAEA v Allen Family Pty Ltd[10] held that a similar term was not detrimental for the purpose of the Better Off Overall Test and was a neutral consideration. Similarly, Deputy President Saunders approved an agreement covering a Grill’d franchise restaurant with the same provision.[11] The SDA and UWU submitted that there is an important distinction between the term considered by the Full Bench and the term in the Agreement. They contend that the flexibility for employees under the Agreement is constrained in a way that didn’t apply under the Allen decision because whilst an employee can identify their availability for shifts, any change in the employee’s availability must be approved by the manager based on their study or other commitments. I am not persuaded that this is a meaningful distinction in the context of evidence that the process of rostering part-time employees at Grill’d is a fluid and mutually beneficial process. I consider the part-time clause to be a neutral consideration.
b)Other potential detriments
The Agreement does not provide a special clothing allowance, however in light of the evidence of Ms Astruc for Grill’d that employees are no longer required to wear special clothing which would attract the allowance under the award, I do not consider this to be a detriment.
The SDA and UWU contend that the obligation on employees under the Agreement to work mandatory weekday hours (in order to offset the impact of the inclusion of penalty rates into the ordinary hourly rate of pay under the Agreement) is a detriment. They contend that under the award there is no obligation to work on weekdays, and a requirement to do so is disadvantageous. I do not agree. There is no entitlement under the FFI Award to not work weekdays, and the evidence led by Grill’d is that prospective employees are advised during recruitment that they will be required to work both weekdays and weekends, and that if an applicant indicated this was not acceptable, they would not be offered employment. Further, under the Agreement, the additional weekday hours that an employee may be required to work would need to be within the availability they have entered into the system for rostering purposes.
The unions also submit that for the purposes of the BOOT in respect of Team Leaders, the appropriate classification is Level 2, whereas the modelling by Grill’d for these employees was based on a Level 1 classification. The definition of a Fast Food Employee Level 2 in the award is an employee who has the ‘major responsibility on a day to day basis for supervising Fast Food employees Level 1 and/or training new employees …”. The evidence led by Grill’d is that Team Leaders are not responsible for either supervising or training other employees. Accordingly, I am satisfied that Level 1 is the appropriate comparator for Team Leaders.
·Does the Agreement pass the Better Off Overall Test?
The Agreement contains other detriments that I have weighed up in evaluating whether overall the Agreement passes the Better Off Overall Test. They include that overtime is not payable for the first 60 minutes worked after a weekday or weekend shift. In light of the undertakings offered by Grill’d and the financial modelling discussed above, my overall assessment is that at the test time the Agreement passes the BOOT. The only guaranteed wage increase under the Agreement is a 1% per year increase of the hourly rate of pay for the nominal life of the Agreement. It may well be that over the life of the Agreement the rates of pay will become lower than the award rate. Mr Amin’s evidence shows that this is what largely occurred under the current agreement.[12] However, I am required to assess the Agreement as at the test time and cannot consider what may occur over the life of the Agreement.
My overall assessment is that the Agreement does - although barely for some employees - pass the Better Off Overall Test.
I am also satisfied that the 16 undertakings offered by Grill’d will neither cause financial detriment to any employee covered by the Agreement nor result in substantial changes to the Agreement.
Did the employees genuinely agree to the Agreement?
The unions contend that the Agreement has not been genuinely agreed to by the employees covered by the Agreement.
The contention here is principally that Grill’d did not comply with s180(5) and (6) of the Act which requires an employer to take all reasonable steps to ensure that:
(a)the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and
(b)the explanation is provided in an appropriate manner taking into account the personal circumstances and needs of those employees, including young employees.
The proper approach to assessing this issue is informed by decisions including Ditchfield[13] where the Full Bench said:
[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it. An employer’s discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.
and
[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. ….
(footnotes omitted)
I am also required to take into account the Statement of Principles on Genuine Agreement (SoP) in forming my view.[14] The SoP at 8(a) provides that the employer’s explanation of the terms of an agreement and their effect should, at a minimum, include explaining to employees how the proposed agreement will alter their existing minimum entitlements and other terms and conditions of employment. In doing so, where a proposed agreement will replace an existing enterprise agreement it will generally be sufficient to explain:
·the differences in entitlements and other terms and conditions between the proposed and the existing agreement; and
·the differences between the proposed agreement and relevant modern award provisions that have been varied since the existing agreement was made.
The SoP also provides that employees should be given a reasonable opportunity to vote on a proposed agreement in a free and informed manner that should include: a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer; and a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.
Grill’d employees were given two information packs regarding the agreement on 7 May and 7 October 2024. The first information pack distributed to employees on 7 May 2024 contained a letter explaining the process of bargaining and advising details of information sessions at each store which were held on 18 May. The pack also contained a memorandum to employees including commonly asked questions and answers, a Notice of Employee Representational Rights, a feedback form and a proposed Grill’d Enterprise Agreement 2024.
The second information pack contained a covering letter, the Agreement, a detailed 17-page comparison document[15] setting out key differences between the current agreement, the Agreement and the FFI Award, the fact sheet prepared by the Fair Work Ombudsman regarding the National Employment Standards, and a marked-up version of the Agreement showing tracked changes from the originally proposed agreement distributed on 7 May 2024. Information sessions were then held at each store on 5 October 2024, with explanations delivered by Business Managers using a PowerPoint presentation. The Business Managers were instructed to read from each slide, and to read from an accompanying run sheet or script that they were given.[16]
In this case, the circumstances relevant to my consideration of the adequacy of the explanation of the terms of the Agreement, and their effect, include that:
the Agreement is very similar to the current agreement;
there was a high turnout of employees to vote with a high proportion voting in favour of the Agreement;
almost two-thirds of the employees covered by the Agreement are under 21 years of age;
the staff turnover rate of Team Members is in the order of 60-80% per year[17];
almost 90% are part-time employees;
as discussed above in relation to the BOOT, the Agreement allows for employees to be engaged on a basis whereby they are less than $1 per week better off at the test time, and that over the nominal 4 year life of the Agreement, any benefit is likely to be eroded as rates in the FFI Award increase;
there was no evidence before the Commission that any employees did not in fact understand the terms of the Agreement they were asked to vote on.
Grill’d submitted that a relevant part of the circumstances to be considered is the existence of a union presence and that this lessens the burden of the explanation.[18] If there was a significant union presence, I would agree that this would be a relevant contextual factor. However, the evidence of any union presence at the workplace level seems to be largely if not entirely confined to two restaurants: Flinders Lane, Melbourne and The Galeries, Sydney. In the context of 149 outlets,[19] I am not persuaded that this limited presence carries any significant weight.
I also do not consider that the high turnout of employees to vote, and the high vote in favour of the Agreement, carries much weight in assessing whether the explanation of the Agreement was sufficient. And whilst relevant, I do not consider that it is determinative that there was no evidence before the Commission that any employees did not actually understand the terms of the Agreement.
The Agreement is very similar to the current agreement. Other than adjusted rates of pay, the main differences are that:
·whereas the current agreement provided no guaranteed increase in hourly rates of pay, the agreement guarantees a 1% per year increase.
·under the Agreement, part-time employees are required to work less than 38 hours per week, averaged over an 8-week period, compared to over a 12-week period under the current agreement.
·the introduction of an obligation that for every hour a Team Member works on a Saturday or Sunday they are required to work at least an equivalent number of hours on a weekday over a four-week period. If an employee is unable to work their shift they can take paid or unpaid leave.
In many instances, this would be a compelling factor in the assessment, as it could be presumed that the employees would have come to understand the current terms, and their effect, over the course of their employment. However, in the circumstances at Grill’d, where the staff turnover rate is in the order of 60-80%, coupled with two-thirds of employees being under 21 years of age, such a presumption cannot soundly be made. Mr Amin gave evidence for the SDA that in his experience, because of their young age, many employees in the fast food industry have no previous employment experience. Mr Amin also pointed to ABS data showing that 205.8 thousand workers in the Accommodation and Food Services Industry, which includes fast food, were ‘new entrants’ to the labour market.[20]
The SDA submits that Grill’d’s explanation was inadequate in five main respects.
The first is that Grill’d failed to explain the loaded rates in the Agreement and the effect of the removal of penalty rates, leave loading and other allowances.[21] The SDA’s complaint is that employees were told that the hourly rates of pay incorporates various penalties and leave loadings, but were not given the details of the value attributed to the entitlements and how this was incorporated into the higher base rate of pay. Further, that employees were assured that the increased rates of pay were intended to ensure adequate compensation including for the removal of some penalty rates, whereas the SDA contends that not to be so. In view of my findings that the Agreement does pass the Better Off Overall Test, the explanation provided to employees was sufficient.
The second issue raised by the SDA and the UWU is that Grill’d failed to explain that under the Agreement penalty rates are fixed at a specific amount and not as a percentage of the base rate and are frozen at that rate throughout the life of the Agreement. Clause 19.1 of the Agreement provides that employees receive penalty rates for work between 10:00 pm and 6:00 am, expressed as a specific dollar amount. Similarly, clause 28.4 provides that specified higher hourly rates apply to work on a public holiday. Under the FFI Award, penalty rates are a percentage of the base hourly rate, which would increase each year by any increase from the Commission’s Annual Wage Review. The comparison table relevantly provided:
The PowerPoint presentation delivered by Business Managers stated that “The EA provides an increased fixed rate of pay ….”.[22]
The combination of the comparison document and the PowerPoint explanation regarding penalty rates and public holiday rates conveyed: the current dollar amounts payable for work between 10:00 pm and 6:00 am and on public holidays; that this was a fixed amount under the Agreement; and that under the Award a percentage loading applied. I consider that this is a sufficient explanation of the terms of the Agreement in respect of work at these times. However, it did not explain the effect of those terms. There was no explanation that, unlike the FFI Award, the rates under the Agreement remained static, nor the consequences or effect that flow from that.
Grill’d submitted that including a comparison of the Award went beyond what is required under s180(5) in light of Ditchfield and 8(a) of the Statement of Principles whereby it will generally be sufficient where an existing agreement is in place for the explanation to explain the differences between the proposed and current agreement.[23] However, my view is that in light of the profile of the workforce at Grill’d, especially the staff turnover rate, it would not have been sufficient to simply compare the current agreement and the Agreement. In any event, having included a comparison of the Award, which I consider was called for, it was incumbent upon Grill’d to properly explain the terms of the Agreement and their effect vis a vis the FFI Award. I do not accept the submission put by Grill’d that ‘in conveying the substance of the actual agreement and comparing it to the Agreement that it will replace and the award, you are explaining the effect of what you are offering’.[24] That may be so where the effect is clear and apparent from the information provided, but that is not the case here.
The Full Bench decision in Allens is instructive. In dealing with an appeal against approval of an enterprise agreement covering six ‘Subway’ fast food restaurants, the Full Bench held that the explanation of the agreement was inaccurate in relation to two of its terms. The first deficiency concerned the employer’s explanation of a meal allowance entitlement. The explanation was included in a table comparing the agreement provision and the FFI Award. The table stated that under the agreement a meal allowance was provided where the employee is ‘required to work more than an hour of overtime and was not provided 24 hours’ notice: $15.23. If the overtime if [sic] more than 4 hours: Additional $13.76.’ The corresponding entry under the Award column was “Meal Allowance: As per the Award.” The Full Bench held that the meal allowance is a significant entitlement, and that the explanation was inaccurate. Although it was accurate in the sense that the amount of the allowance was the same under the agreement as under the Award at the time the approval application was made, the employer failed to explain that, unlike the Award, there is no mechanism or obligation to adjust the meal allowance during the life of the agreement.[25] The second issue was that although the explanation that superannuation “is payable in accordance with the superannuation legislation’ was correct, the employer failed to explain the effect of the term, namely that the Agreement did not provide for superannuation to be paid during periods of absence on workers’ compensation, whereas the Award did.[26] These findings were made by the Full Bench, in circumstances where it appears the employees were not covered by the award, but by another enterprise agreement. The Full Bench had also found that (subject to undertakings) the agreement passed the Better Off Overall test. The Full Bench invited further undertakings to address these defects, which were subsequently given, and the agreement approved.[27]
I consider the circumstances here to be analogous to those dealt with in Allens. Grill’d did not take all reasonable steps to explain the effect of the terms of the Agreement dealing with wage rates for work between 10:00 pm and 6:00 am and on public holidays. Whilst not binding, I note that a similar conclusion concerning a failure to explain the effect of fixed penalty rates under an agreement (which replaced an existing agreement) was reached by Deputy President Beaumont in LFP Australia Pty Ltd.[28]
The fourth issue raised by the SDA is that Grill’d failed to explain the ‘radically different’ employment model for part-time employees and removal of part-time safeguards. The PowerPoint presentation did provide an explanation of the part-time employment provision and the introduction of mandatory weekday work to ‘offset’ weekend and public holiday work. The presentation included saying that “to ensure employees are better off on these rates than what is provided for under the Award, Team Members and Team Leaders will be rostered for additional weekday hours when working on weekends and public holidays.” Further explanation is provided including that “we are introducing weekend and public holiday equivalency (offset) hours …. that ensure that “employees get the full benefit of loaded rates when working on either a weekend or public holiday” and that an employee can take paid or unpaid leave if unable to work their shift.[29] I consider that the explanation by Grill’d in this respect was sufficient.
The SDA’s final issue was that Grill’d failed to explain the effect of the removal of the trainee minimum wage protection under the Miscellaneous Award. This issue has been addressed by a further undertaking offered by Grill’d.
The UWU’s submits the employees did not genuinely agree on additional bases. The first of these is that the comparison provided was against the FFI Award where it should have been against the Restaurant Industry Award. However, given my earlier finding that the FFI Award is the relevant benchmark award, this is not the case.
The UWU contends that the explanation by Grill’d was incorrect or inadequate in saying that rates of pay will be increased by 1% each year for the life of the Agreement whereas it is only the case for its nominal life. However, the comparison table states that the guaranteed 1% increase is for the nominal life of the Agreement.[30]
Thirdly, the UWU contends there were insufficient meetings held, with only one meeting per workplace, given many employees would not have been rostered to work at that time or may have been on leave. I am satisfied that the two meetings held at each workplace during bargaining, coupled with opportunities provided for anonymous feedback or questions to be submitted directly to management, was sufficient to discharge its obligations.
The UWU also submits that Grill’d provided misleading information because the tracked changes version of the proposed agreement included in the second information pack did not track all changes between the current agreement and the Agreement. Clause 14.5 was provided as an example of this.[31] However, the tracked changes document was a document showing changes from the originally proposed agreement circulated in May 2024 and the final agreement for which Grill’d sought employees to approve.[32] It was not a comparison between the current agreement and the Agreement. There was no change concerning clause 14.5.
The UWU also submits that contrary to the SoP employees were not afforded an opportunity to vote in a free and informed manner, as it contended that employees at one outlet were or were able to be monitored by a manager. However, I am not satisfied that the evidence led by the UWU in light of the cross-examination of the manager concerned, rises to anywhere near that level.
There is no doubt that the explanatory material provided by Grill’d referred to at [32] and [33] above was extensive. The comparison table comprised 17 pages. It does not, and in my view did not need to, include every variation between the current agreement, the Agreement and the FFI Award. Choices are necessarily made by the employer as to what to include and what to omit in compiling their explanation. The comparison table also expressly advises employees that it is a brief summary to provide a basic comparison between the main terms and conditions between the current agreement, the Agreement and the FFI Award, and that it does not summarise every term, and employees were encouraged to read the reference documents in full.[33] However, in this case, substantive terms that differ significantly between the instruments were excluded whilst decisions were made to include terms where no change was involved.[34]
For example, clause 24 of the Agreement provides that employees may be required to work at other locations, either permanently or temporarily. This occurs at the discretion of Grill’d, although an employee will be consulted before implementing any change of location and Grill’d ‘will endeavour to take your personal circumstances into account.’[35] There is no equivalent provision in the FFI Award. However, the FFI Award does provide that if an employer requires an employee to work other than at their usual place of work, the employee must be paid for reasonable extra travelling time and excess fares reasonably incurred.[36] Neither clause 24 of the Agreement, nor the terms of the Award are referred to in the explanation provided by Grill’d. This is not an unrealistic and purely hypothetical scenario given the large and growing number of restaurants operated by Grill’d.[37] There was also evidence from employees that they worked at various locations, although it is not clear whether they were required by Grill’d to do so. For example, Mr Mitchell Both (a union delegate) primarily worked at Flinders Lane but had worked at Melbourne Airport, Maribyrnong and other Melbourne CBD restaurants.[38] Ms Siena Mills worked primarily at The Galeries in Sydney CBD, but had also worked at Crows Nest, Campbelltown, and Darling Harbour.[39]
There is also no reference in the explanatory material to the entitlements under the FFI Award to reimbursement of travel costs in certain circumstances where an employee starts or finishes work after 10:00 pm or before 7:00 am[40] or Accident make-up pay[41]. Neither of these entitlements exist under the Agreement.
Grill’d offered an undertaking to reimburse additional reasonable transport costs incurred by non-salaried employees directed by Grill’d to move temporarily from one restaurant to another for a period not exceeding three weeks.[42] However, the undertaking proffered does not deal with the removal of the entitlement to excess travel time, the entitlement under cl 17.7 of the FFI Award, nor the accident make-up pay.
As stated in Ditchfield, it is not always necessary for an employer to identify all the detriments of an agreement as against the relevant award especially, as exists here, the Agreement replaces an existing one. A clear example would be where the rates of pay are much higher than the award. In those circumstances, failing to identify all less beneficial conditions, especially non-substantial or non-applicable terms, would not render the explanation inadequate. The question needs to be evaluated in light of the particular circumstances at hand. The standard required by s180(5) is also not one of perfection.[43] Nor is it impossibly high. However, in my view the explanation provided by Grill’d was inadequate in not including any information concerning the location of work, the reimbursement of travel time and fares under the Award, and the omission of accident make up pay.
There is, in my view, another relevant matter concerning s180(5). In the comparison table the base wage rates under the current agreement, the Agreement and the FFI Award are all set out in dollar amounts. This shows that the Agreement rates are higher than the other two instruments. A different approach is taken in relation to work performed on Saturdays and Sundays between 6:00 am and 10:00 pm. In relation to the FFI Award, the comparison table does not set out the dollar amounts but refers to a loading of 25% for ordinary hours worked on a Saturday and a 25% loading for work on a Sunday for Level 1 employees (and 50% for Levels 2 and 3).[44]
The PowerPoint presentation clearly sets out the current agreement rate, the Agreement rate and the current FFI Award rate for:
Base rates for Team Members
Base rates for Team Leaders
Rates for Trainees
Rates for work Monday between 10 pm and 6 am for full-time and part-time employees
Rates for work Monday between 10 pm and 6 am for trainees
Public holiday rates[45]
For example the base rates for Team Members shown is:
In each of these scenarios, other than public holidays, the Agreement provides significantly higher rates of pay.
However, there is no such slide in relation to ordinary hours worked on the weekend between 6:00 am and 10:00 pm, which is considerably more common than between 10:00 pm and 6:00 am that is covered by the presentation. For work performed during this period, the rates under the Agreement are significantly lower than the FFI Award. For a Level 1 employee, under the Agreement they would receive $29.13 whereas under the Award, they would receive $32.06 per hour. The information in the explanation is not incorrect, however in my view, it is inadequate and does not explain the effect of the terms of the Agreement. It is not clear at all from the explanation provided that for work performed during weekend days and evenings, the Agreement rates are significantly lower than the FFI Award. Employees would need to undertake various calculations to arrive at this understanding.
The decisions made about what is detailed and what is not in the explanation contributes to an overall and cumulative picture. There were also statements in the PowerPoint presentation that the Commission conducts its own Better Off Overall Test against the FFI Award “to ensure that you are protected and provided with favourable conditions as compared to the Award.”[46] The run sheet includes that “Grill’d’s goals are clear, they want to provide our restaurant teams with an agreement that is better than what we would get under the FFI Award ….”[47] The combined and cumulative effect of such statements and selections of what was and wasn’t detailed in the Explanation paints a rosy picture of the Agreement. There is nothing necessarily wrong with that and it is unsurprising as Grill’d wanted its employees to vote in favour of the Agreement. However, I consider in the particular circumstances of this matter, especially given the very large number of young people with limited experience and knowledge coupled with the very high turnover of staff and that under the Agreement some employees may be only 77 cents per week better off (at the test time), by omitting this explanation and the cumulative picture created by the explanation, Grill’d did not take all reasonable steps to explain the effect of the terms of the Agreement.
Conclusion
My overall assessment is that Grill’d did not take all reasonable steps to explain the terms of the agreement, and their effect, to its employees as required by s180(5) and (6) of the Act. I cannot approve the Agreement in its current form.
In closing submissions Grill’d advised that if concerns remained with approving the Agreement, it would consider offering further undertakings.[48] Grill’d is invited to consider whether it wishes to do so. Any such undertakings are to be provided by 25 April 2024. In the event none are forthcoming, I will have no option but to dismiss the application.
DEPUTY PRESIDENT
Appearances:
Mr N Harrington, Counsel appeared on behalf of the Applicant
Mr J Tierney, Counsel appeared on behalf of the Shop, Distributive and Allied Employees’ Association
Mr C Zammit, appeared on behalf of the United Workers Union
Hearing details:
2025
31 January, 11 February, 14 February and 6 March.
[1] Email from Lisa Anaf, 14 March 2025.
[2] Ibid, Undertaking 14.
[3] Further Supplementary Witness Statement of Alex Kaimakamis,14 February 2025, at [16]-[18].
[4] MFI-1.
[5] Exhibit A7.
[6] Transcript PN4051-4153.
[7] Email from Lisa Anaf, 14 March 2025, Undertaking 10.
[8] Undertaking 2, Email from Lisa Anaf, 14 March 2025.
[9] See also Undertaking 16, Email from Lisa Anaf, 14 March 2025.
[10] [2024] FWCFB 48.
[11] JMP One Pty Ltd [2024] FWCA 988. In this matter, the issue of whether employees genuinely agreed to the agreement does not appear to have been raised.
[12] Witness Statement of Ali Mohammed Amin, 18 December 2024, at [38]-[43], DHB 1087.
[13] CFMEU v Ditchfield Mining Services Pty Ltd[2019] FWCFB 4022.
[14] s.188(1) of the Act.
[15] Exhibit LA-12 to Witness statement of Elizabeth Astruc, DHB 1554.
[16] Witness statement of Elizabeth Astruc, 22 January 2025, DHB 1356; Exhibits LA-10 and LA-11, DHB 1520-1554.
[17] Transcript PN496-499.
[18] Grill’d Outline of Submissions, 22 January 2025, at [182]-[183], DHB 1312.
[19] Witness statement Elizabeth Astruc, 22 January 2025, DHB 1343.
[20] Witness Statement of Ali Mohammed Amin, 18 December 2024, at [18], DHB 1084.
[21] SDA Outline of Submissions, 18 December 2024, at [57]-[61], DHB 1078-1079.
[22] DHB 1533.
[23] Transcript PN4187-4188.
[24] Transcript PN4189.
[25] Allens at [85]-[86].
[26] Allens at [88].
[27] [2024] FWCFB 97.
[28] [2024] FWC 2013.
[29] DHB 1529, 1536.
[30] DHB 1562.
[31] Submissions of United Workers Union, 18 December 2024, at [32(j)], DHB 367.
[32] Witness Statement of Elizabeth Astruc, 22 January 2025, at [79], DHB 1356.
[33] DHB 101.
[34] For example, compassionate, community services, parental, long service and family and domestic violence leave were all included: DHB 96.
[35] DHB 152.
[36] Clause 17.6. FFI Award. See also cll. 17.9 and 17.10.
[37] Although Grill’d had indicated that employees are not frequently directed to work at a locations other than their contracted workplace: DHB 1491-1492.
[38] Witness Statement Mitchell Both, 11 January 2025, DHB 792.
[39] Witness Statement Siena Hopper, 22 January 2025, DHB 1010.
[40] Clause 17.7 FFI Award.
[41] Clause 18 of the FFI Award.
[42] Undertaking 9, Email from Lisa Anaf, 14 March 2025.
[43] Grill’d Outline of Submissions, 22 January 2025, at [186], DHB 1312.
[44] DHB 1562.
[45] DHB 1530-1535.
[46] DHB 1538.
[47] DHB 1545.
[48] Grill’d Outline of Closing Submissions, 28 February 2025, at [7].
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