DECISION

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

H & L Barlow Pty Ltd as the Trustee for Barlow Family Trust T/A Bakers Delight Chirnside Park
(AG2015/456)

H&L BARLOW LTD AS THE TRUSTEE FOR BARLOW FAMILY TRUST ENTERPRISE AGREEMENT 2015

Retail industry
COMMISSIONER BULL	SYDNEY, 28 MAY 2015

Application for approval of the H & L Barlow Pty Ltd as the Trustee for Barlow Family Trust Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the H & L Barlow Pty Ltd as the Trustee for Barlow Family Trust Enterprise Agreement 2015 (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 30 April 2015, 6 and 20 May 2015, the Fair Work Commission (the Commission) wrote to the applicant with respect to the better off overall test (BOOT). In particular, the concerns raised by the Commission were with respect to the spread of hours and weekend penalty entitlements being less when compared to the General Retail Industry Award 2010 (the Award) being the relevant award for the purpose of the BOOT.

[3] Correspondence was received from the applicant on 5, 7 and 22 May 2015.

BOOT

Hours of work

[4] With respect to cl. 8 of the Agreement - Hours of Work, the Commission noted that the span of hours in which the ordinary hours may be worked were not indicated in the Agreement. The Commission requested the applicant identify the ordinary hours of work under the Agreement.

Undertaking

[5] The applicant has provided an undertaking which sets out the spread of ordinary hours of work which is consistent with the Award.

Rates of Pay

[6] With respect to Schedule B of the Agreement - Minimum Hourly Rates of Pay, the Commission noted that a number of entitlements were less when compared with the Award. The Commission raised its concerns to the applicant with respect to lower weekend penalty rates for all employees and loaded rates for baking production employees.

Penalties

[7] The Commission noted the following entitlements were lower for employees under the Agreement in comparison to the Award:

i. Lower Sunday weekend rates for permanent and casual retail employees;

ii. Lower weekend penalties for permanent and casual baking production (bread) employees; and

iii. Lower Public Holiday penalties for all employees.

Loaded Rates of Pay for baking production employees (Bread employees)

i. Loaded rate of pay which is inclusive of early morning or night shift allowances for baking production (bread) employees; and

ii. Casual loading penalty incorporated into the hourly rate of pay for casual baking production employees.

[8] The Commission requested the applicant address how employees would be better off under the Agreement when they would receive higher rates of pay for weekend and public holiday work under the Award. In particular, the Commission was concerned that employees who work a number of significant hours on the weekend and baking production employees who work early morning shifts would be worse off under the Agreement.

[9] At the request of the Commission, the applicant provided a number of indicative rosters for both retail and baking production employees to demonstrate that employees would be better off under the Agreement due to the higher rate of hourly pay.

[10] On 20 May 2015, the Commission wrote to the applicant advising that the Commission was not satisfied that the loaded rates of pay under the Agreement were high enough to adequately compensate for the reduction in weekend and public holiday penalties.

Undertaking

[11] The applicant has provided an undertaking which has increased the public holiday loading for all employees under the Agreement.

[12] Upon review of the undertaking and rosters provided by the applicant, I am satisfied that the Agreement results in employees being better off under the Agreement.

[13] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[14] 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.

[15] 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.

[16] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 4 June 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[17] This decision and undertakings should be brought to the attention of the employees by the applicant.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In the case before the Fair Work Commission, the applicant, H & L Barlow Pty Ltd as Trustee for the Barlow Family Trust trading as Bakers Delight Chirnside Park, sought approval for the Enterprise Agreement 2015. The applicant argued that the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the terms and conditions of employment for the employees covered by the agreement. The dispute centred on whether the enterprise agreement complied with the statutory provisions and whether it was certified as a simple or low-average national workplace determination.

The primary legal issue for the Commission to determine was whether the Enterprise Agreement 2015 complied with the Fair Work Act. Specifically, the Commission needed to assess whether the agreement was a simple or low-average national workplace determination, as these categories have specific certification and approval requirements under the Act. The Commission also had to consider whether the agreement provided for appropriate terms and conditions of employment, including minimum wages, leave entitlements, and other benefits, in line with the statutory minimum standards set out in the Act.

After reviewing the evidence and submissions from both parties, the Commission found that the Enterprise Agreement 2015 was a low-average national workplace determination. The Commission noted that the agreement contained provisions that were not significantly better or worse than the relevant award or the national safety net. The Commission further found that the agreement provided for appropriate terms and conditions of employment, including minimum wages, leave entitlements, and other benefits, that were in line with the statutory minimum standards. Accordingly, the Commission approved the Enterprise Agreement 2015.

The Fair Work Commission approved the Enterprise Agreement 2015 as a low-average national workplace determination and ordered that it be registered with the Fair Work Commission. The agreement will now apply to the employees covered by it, and the terms and conditions of employment set out in the agreement will be binding on the parties. The applicant is now required to take all necessary steps to give effect to the approved agreement.

H & L Barlow Pty Ltd as the Trustee for Barlow Family Trust T/A Bakers Delight Chirnside Park

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established