Gulp! Catering Solutions Pty Ltd

[2013] FWCA 9369

[2013] FWCA 9369

FAIR WORK COMMISSION

DECISION

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

Gulp! Catering Solutions Pty Ltd
(AG2013/9929)

GRILL'D CHERMSIDE ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 29 NOVEMBER 2013

Application for approval of the Grill'd Chermside Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Chermside Enterprise Agreement 2013 (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 15 November 2013, the Commission alerted the Applicant via its representative to concerns it had with respect to overtime under the Agreement.

[3] Correspondence was received from the Applicant on 25 November 2013.

[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 - Employers declaration in support of application for approval of enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary.

[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 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 that employees a very limited number of salaried employees and pays those employees an amount above what is provided for under the Agreement, that is, whilst the Agreement provides a Business Manager with a minimum salary of $49,124 per annum, the employer actually provides the employee with a higher remuneration of $57,000 per annum. However, payments made outside the Agreement, have no legislative force and are not able to be considered under the better off overall test. Further, 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] However, I am satisfied upon review of the roster and calculations provided by the Applicant that despite salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay.

[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 6 December 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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