Gypsy's Wish Pty Ltd as trustee for the Stevering Family Trust

[2010] FWA 9243

[2010] FWA 9243

FAIR WORK AUSTRALIA

DECISION

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

Gypsy's Wish Pty Ltd as trustee for the Stevering Family Trust
(AG2009/13164)

Liquor and accommodation industry
COMMISSIONER CRIBB	MELBOURNE, 1 DECEMBER 2010

Application for approval of the Gypsy's Wish Enterprise Agreement 2009 - application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Gypsy's Wish Enterprise Agreement 2009 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Gypsy's Wish Pty Ltd as trustee for the Stevering Family Trust (the company). The Agreement is a single-enterprise agreement.

[2] On 28 June 2010, the Tribunal wrote to the company’s legal representative with a number of queries regarding the Agreement. No response was received to that letter, nor to further correspondence sent directly to the company on 20 August 2010, 16 November 2010 and 25 November 2010.

[3] In assessing the requirements of ss.186, 187 and 188 of the Act for approval of the Agreement, I am unable to determine whether the wage rates in Schedules 2 and 3 pass the no disadvantage test. This is despite initially requesting further information regarding the wage rates, and job classifications (clause 16), from the company, on 28 June 2010.

[4] With respect to clause 4.1 (Application) and clause 6 (Dispute Resolution), there has been no response regarding the specific nominal expiry date nor regarding the absence of provision for the representation of employees during the process.

[5] The company was queried regarding clause 23.4 (Voluntary Overtime), clause 27 (Team Meetings) and clause 24 (Reasonable Additional Hours) but no response has been received. Therefore, consistent with the Full Bench decision in Bupa Care Services Pty Ltd, 1 this clause does not pass the no disadvantage test.

[6] Concerns were also raised with the company about whether a number of clauses met the no disadvantage test but no response was received. These were:

• Clause 7.2 and 25 - full time salaried employees who are required to work reasonable additional hours with no overtime payable.



• Clause 23.3(b) - time in lieu is to be taken on an “hour for hour” basis. The Liquor and Accommodation Industry - Restaurants (Victoria) Award 1998 (the Award) provides for it to be taken on an equivalent basis to what the employee would have been paid (clause 25.6.2).



• The Agreement does not provide for penalty rates for working weekends or outside the hours of 7.00 am - 7.00 pm Monday to Friday as is set out in clause 26 of the Award.



• The Agreement (clause 7) provides for the hours of work to be an average of 152 hours per four week period averaged over a 12 month period. The Award sets out the hours of work as 152 hours per four week period only (clause 23).



• Clause 23.3 of the Agreement provides for the first three hours of directed overtime to be paid at single time and 125% thereafter or on Sundays. The Award sets the penalty rates for overtime at 50% for the first two hours and double time thereafter Monday to Friday with Saturday and Sunday penalty rates starting higher than 50% (clause 25.3).



• Payment of annual leave and personal leave as loaded wage rate (clause 39) - this arrangement was found in the decision in Cafe Yaringa Pty Ltd t/a Cafe Yaringa 2 to not pass the no disadvantage test.



• The payment for working a public holiday is less in the Agreement (clause 44.3) than provided for in the Award 9clause 31).

[7] Accordingly, based on the material before me, I am not satisfied that the requirements of the Act for approval of the Agreement have been met, particularly with respect to the no disadvantage test.

[8] Accordingly, the application is dismissed.

COMMISSIONER

 1   [2010] FWAFB 2762

 2   [2010] FWA 1388

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