I Scream Gelato Pty Ltd

[2016] FWCA 2390

[2016] FWCA 2390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

I Scream Gelato Pty Ltd
(AG2016/318)

I SCREAM GELATO PTY LTD – ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 5 MAY 2016

Application for approval of the I Scream Gelato Pty Ltd - Enterprise Agreement 2015.

[1] An application has been made by I Scream Gelato Pty Ltd (the applicant) for the approval of an enterprise Agreement known as the I Scream Gelato Pty Ltd - Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise Agreement.

[2] The Agreement covers all employees engaged by the employer.

[3] The Fast Food Industry Award 2010 (the modern Award) is the relevant reference instrument for the purposes of the better off over all test (BOOT) as required under s.186 of the Act.

[4] On 10 March 2016, the Commission wrote to the applicant with respect to the late lodgement of the application, and Agreement provisions concerning overtime for part-time employees, base rates and rates inclusive of annual leave loading and work on weekends and public holidays.

Late lodgement

[5] The Commission noted that the application for approval of an enterprise Agreement was not made to the Commission within 14 days after the Agreement made as required by s185(3)(a) of the Act. The Commission requested an explanation of the delay in making the application in order to consider if in all the circumstances it is fair to extend the 14 day period prescribed in s185(3)(a).

[6] Mr Agnew, the bargaining representative for the employer, provided the Commission with information that the delay was due to administrative difficulties in having the material for the application correctly sworn by an authorised witness as well as issues within his office. Given these responses and pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

Overtime for part-time employees

[7] The provisions of clause 4.2.1 of the Agreement state that overtime penalties are paid for “All hours worked by an Employee in excess of the hours of work set out in clauses 4.1.1 and 4.1.2 of this Agreement”. The modern Award provides that part-time employees work reasonably predictable hours of work, have an agreed regular pattern of work and are paid for all worked in excess of the agreed hours at overtime rates. The Commission was concerned that the Agreement provisions do not provide the same protections as the modern Award for part-time employees in relation to overtime. The Commission requested that the applicant provide clarification of the payment of overtime for part-time employees specifically when part-time employees are entitled to the overtime payments provided in clause 4.2.2 in order to assess whether part-time employees under the Agreement will be better off overall if they perform overtime.

[8] In response to the request of the Commission, the applicant provided undertakings such that the provisions of clause 4.2.1 are deleted and replaced by provisions specifying exactly when part-time employees are entitled to the payment of overtime.

Base rates, rates inclusive of annual leave loading, work on weekends and public holidays

[9] The Agreement provides base rates of pay for work performed Monday to Saturday which are 1.51% below to 9.83% above the corresponding minimum rates of pay under the modern Award. The Agreement also provides higher hourly rates for Sunday and public holiday work. The hourly rates for permanent employees are inclusive of annual leave loading.

[10] The Commission noted that the hourly rate (Monday to Saturday) for the 19 year old Customer Service employee ($14.96) was lower than the relevant modern Award rate ($15.19). Additionally, the Commission noted that the hourly rates (Monday to Saturday) for two classifications –under 16 year old Customer Service and Supervisor employees - did not appear to be high enough to compensate for the removal of annual leave loading. The Commission requested the applicant provide undertakings to address these concerns.

[11] In response to the request of the Commission, the applicant provided undertakings as follows:

● that the hourly rates in the Agreement are deleted and replaced by higher rates for the abovementioned employees;
● that employees will work in accordance with a rostering system provided to the Commission; and
● that the employer will conduct a wage review for each employee against the modern award on the anniversary date of their engagement or on their termination date for the nominal term of the Agreement.

[12] The Commission conducted an analysis of all Monday to Saturday, Sunday and public holiday hourly rates in accordance with the rostering system provided by the applicant. The Commission is satisfied that the employer’s compliance with the rostering system will ensure that employees engaged in all classification remain better off overall under the Agreement. The Commission is also satisfied that the reconciliation clause provides an effective safety net should an employee not be better off overall under the Agreement.

Undertakings provided

[13] The undertakings provided by the applicant address the Commission’s concerns in relation to overtime for part-time employees, base rates and rates inclusive of annual leave loading and work on weekends and public holidays. The undertakings provided by the employer are attached at Annexure A of this decision. The undertakings are taken to be a term of the Agreement.

[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.

Approval

[15] Taking into account the rates of pay under the Agreement when compared to the modern Award, the rostering system and the reconciliation clause outlined above, I am satisfied that the Agreement results in employees being better off under the Agreement.

[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 s.54(1), the Agreement will operate from 12 May 2016. The nominal expiry date of the Agreement is 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE418605  PR579111>

ANNEXURE A