Investment and Property Pty Ltd T/A Oporto Newtown

[2017] FWCA 453

[2017] FWCA 453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Investment and Property Pty Ltd T/A Oporto Newtown
(AG2016/5350)

INVESTMENT AND PROPERTY PTY LTD - ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 20 JANUARY 2017

Application for approval of the Investment and Property Pty Ltd - Enterprise Agreement 2015.

[1] An application has been made by Agnew Legal Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Investment and Property 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.

Late lodgement

[3] The application was lodged 21 days after the agreement was made, and not within 14 days as required by s185(3)(a) of the Act. The applicant acknowledged the delay in its F17 statutory declaration and stated that the Managing Director was overseas so it took some time to obtain another director’s signature. The applicant also stated that they have been paying employees the above award Agreement rates of pay, so that the delay has not resulted in prejudice to employees.

[4] Pursuant to s.185(3)(b), in these circumstances I consider it fair to extend the time for making the application to the date it was actually made.

Better off overall test

[5] The Fast Food Industry Award 2010 (the Award) is the relevant modern award for the purpose of the better off overall test.

[6] The Commission’s analysis suggested that, while the base rates of pay under the Agreement are between 13-15% above the Award rates, the rates of pay may not be high enough to compensate employees for the reductions under the Agreement, including:

● Removal of weekend penalties; and
● Removal of public holiday penalty; and
● Removal of annual leave loading.

[7] In its correspondence to the applicant on 15 November 2016, the Commission noted that the rates of pay in conjunction with the parameter of hours and reconciliation clause will not leave employees better off overall.

[8] On 15 November 2016, the Commission suggested specific undertakings that would address the Commission’s concerns in relation to the better off overall test.

[9] The applicant has now provided an undertaking lifting the base rates of pay so that they are between 23.5-26% above the Award base rates of pay. Further, the applicant has undertaken at Appendix A of the undertakings that full-time, part-time and casual employees in all classifications will work at least 50% of their hours during the hours not subject to penalty rates under the Award, that is between 6.00am to 9.00 from Monday to Friday. Based on the Commission’s analysis, this undertaking will ensure that employees will be better off financially than they would be under the Award.

Undertakings provided

[10] The undertakings provided by the applicant address the concerns raised by the Commission.

[11] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. 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

[12] Taking into account the higher base rates of pay under the Agreement in conjunction with the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[13] 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.

[14] The undertakings are to be brought to the attention of the employees.

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 January 2020.

DEPUTY PRESIDENT

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Annexure A