Jodie Ann Nicholson Pty Ltd T/A Go Sushi Broome

[2015] FWCA 3494

[2015] FWCA 3494

FAIR WORK COMMISSION

DECISION

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

Jodie Ann Nicholson Pty Ltd T/A Go Sushi Broome
(AG2015/709)

JODIE ANN NICHOLSON PTY LTD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 27 MAY 2015

Application for approval of the Jodie Ann Nicholson Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for the approval of an enterprise agreement known as the Jodie Ann Nicholson Pty Ltd Enterprise Agreement 2014 (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 21 May 2015, the Fair Work Commission (the Commission) wrote to the applicant with respect to Sunday trading hours under the Agreement.

[3] In particular, the Commission noted that at 3.4.1 of the applicant’s employer statutory declaration (F17), Sunday penalties were not incorporated into the Agreement rates as the employer did not trade on Sundays. However, at cl. 8.1 of the Agreement - Hours of Work, the Agreement stated that ordinary hours of work for employees can be worked Monday to Sunday inclusive.

[4] The Commission was concerned with this discrepancy as it noted that weekend penalty rates under the Agreement would subsequently be lower for employees who were to work on a Sunday when compared to the Fast Food Industry Award 2010 (the Award) for the purposes of the better off overall test.

[5] On 25 May 2015, the applicant’s legal representative wrote to the Commission confirming that the applicant does not trade on Sundays. However, the applicant provided an undertaking which incorporates Sunday pay rates. The applicant submits that this is to cover the applicant in the event that the applicant may decide to trade on Sundays in the future.

Undertaking

[6] The undertaking provided by the applicant provides Sunday hourly rates that are above the Award.

[7] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[8] The undertaking is not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertaking does not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[9] 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.

[10] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 3 May 2015. The nominal expiry date of the Agreement is four years from the date of approval

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

COMMISSIONER

Annexure A

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