Grocer for a Small Planet Pty Ltd T/A Wild Things Food

[2015] FWCA 1321

[2015] FWCA 1321

FAIR WORK COMMISSION

DECISION

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

Grocer for a Small Planet Pty Ltd T/A Wild Things Food
(AG2015/1511)

WILD THINGS ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 27 FEBRUARY 2015

Application for approval of the Wild Things Enterprise Agreement 2014.

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

Wild Things 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’ representative on 27 January 2015 with respect to concerns it had with the Agreement. The concerns raised by the Commission were with respect to whether the Agreement satisfied the better off overall test.

[3] Correspondence was received from the applicant on 10 February 2015.

Better off overall test (BOOT)

[4] With respect to the BOOT, the Commission noted that the following entitlements under the Agreement were lower when compared to the General Retail Industry Award 2010 and Fast Food Industry Award 2010 (the Awards), being the relevant awards for the purposes of the BOOT. The Commission requested the applicant demonstrate how employees would be better off overall under the Agreement with lesser entitlements.

Annual leave loading

[5] With respect to clause 14 - Annual leave, the Commission noted that the Agreement does not provide annual leave loading. The Commission requested the applicant address how employees would be better off under the Agreement when employees would receive an annual leave loading under the Awards.

[6] Tthe applicant submits that employees are better off under the Agreement with the higher rates of pay despite the Agreement not providing annual leave loading, and provided a number of indicative rosters and comparative tables to support this.

Meal allowance

[7] The Commission noted that the Agreement does not provide a meal allowance which is provided under the Awards.

[8] The applicant submits that based on the regular, rostered patterns of work, the employer does not envisage situations where a meal allowance would be necessary for the employees under the Agreement. 1

Laundering allowance

[9] The Commission noted that the Agreement does not provide a laundering allowance for uniforms which is provided under the Awards.

[10] The applicant submits that the business to which the Agreement relates does not require employees to wear a uniform or particular type of clothing. Accordingly, a laundering allowance is not required under the Agreement.

Penalty rates for Weekends and Public Holidays

[11] With respect to Part C - What Wild Things will provide you, and in particular, the base rates of pay provided under sub clause 13.2, the Commissioner noted that the hourly rate of pay for weekends and public holidays are lower than provided under the Awards. The Commissioner requested the applicant demonstrate how employees would be better off under the Agreement when compared to the Awards.

[12] The applicant submits that the higher base rates of pay under the Agreement in conjunction with the regular patterns of work for all employees translates to greater remuneration under the Agreement when compared with the Awards. The applicant submitted a number of rosters and calculations to demonstrate that employees would be better off under the Agreement.

Minimum engagement for casual employees

[13] With respect to clause 4 - Types of employment, and in particular sub clause 4.1(c) - Casual, the Commission noted that casual employees could be engaged for less than three hours. The Commission requested that the applicant address this concern with respect to the BOOT.

Undertaking

[14] The applicant has provided an undertaking with respect to a minimum engagement period that is in line with the underpinning Awards.

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

[15] 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 undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[16] 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.

[17] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 6 March 2015. The nominal expiry date of the Agreement is 4 years from the date of operation.

[18] This decision should be brought to the attention of the employees by the applicant, noting the rights arising out of the undertaking.

COMMISSIONER

Annexure A

 1   The employer does not envisage there will be situations where employees will be required to work more than one hour of overtime after the employees’ ordinary time of ending work, without being given 24 hours notice, being the circumstances under the Awards where a meal allowance would be provided to employees.

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