Kailis Bros Pty Ltd T/A Kailis Bros Fish Market and Fish Cafe

[2014] FWCA 7636

[2014] FWCA 7636

FAIR WORK COMMISSION

DECISION

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

Kailis Bros Pty Ltd T/A Kailis Bros Fish Market and Fish Cafe
(AG2014/7570)

KAILIS BROS FISH MARKET AND FISH CAFE - ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 28 OCTOBER 2014

Application for approval of the Kailis Bros Fish Market and Fish Cafe - Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kailis Bros Fish Market and Fish Cafe - 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 14 October 2014, the Commission wrote to the Applicant via its representative, Agnew Legal Pty Ltd, in relation to a number of concerns it had with the Agreement. In particular, the concerns related to the rates of pay, meal breaks, and minimum hours per shifts, weekend and public holiday penalties. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 20, 21 and 24 October 2014.

Undertakings

Minimum hours per shifts

[4] The Commission notes that clause 4.1.2 – Hours of work – Part-time Employees, in particular, sub clause 4.1.2(b) of the Agreement provides that the minimum daily engagement of a part-time employee is a minimum of two hours per shift. The General Retail Industry Award 2010 (the Retail Award) and the Restaurant Industry Award 2010 (the Restaurant Award), being the relevant modern awards for the purpose of the better off overall test provide that the minimum daily engagement of a part-time employee is three hours.

[5] The Applicant has provided an undertaking with respect to sub clause 4.1.2(b) of the Agreement that a part-time employee will be provided a minimum three hours per shift.

[6] The Commission notes that sub clause 4.1.3 of the Agreement provides that a casual employee will be engaged on the basis of a minimum of 2 hours per shift. The Retail Award provides that the minimum daily engagement of a casual employee is three hours, whereas the Restaurant Award provides that the minimum daily engagement of a casual employee may be two hours. The Applicant was requested to advise the Commission how retail employees engaged under the Agreement were better off overall.

[7] The Applicant has provided an undertaking with respect to sub clause 4.1.3 of the Agreement that a casual employee will be provided a minimum three hours per shift.

Meal and rest breaks

[8] The Commission notes that clause 4.4 – Breaks, of the Agreement provides that all employees are entitled to an unpaid meal break of thirty minutes if they work more than six consecutive hours in a shift and one paid ten minute rest break after six continuous hours of work. The entitlement to meal and rest breaks under the Agreement appeared to be less than the relevant Awards.

[9] The Applicant has provided an undertaking with respect to clause 4.4 of the Agreement that it will apply the following meal and rest breaks:

“Breaks will be given as follows:

Hours worked	Rest break	Meal break
Work less than 4 hours	No rest break	No meal break
Work 4 hours or more but no more than 5 hours	One 10 minute rest break	No meal break
Work more than 5 hours but less than 7 hours	One 10 minute rest break	One meal break of at least 30 minutes but not more than 60 minutes.
Work 7 hours but less than 10 hours	Two 10 minute rest breaks, with one taken in the first half of the work hours and the second can be taken in the second half of the work hours.	One meal break of at least 30 minutes but not more than 60 minutes
10 hours or more	Two 10 minute rest breaks, with one taken in the first half of the work hours and the second can be taken in the second half of the work hours.	Two meal breaks of at least 30 minutes but not more than 60 minutes.

Weekend and public holiday penalties

[10] The Commission notes that the Agreement does not provide for weekend and public holiday penalties as employees are compensated for these in the hourly rate of pay being higher than the Award. The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement despite the Agreement not providing for these penalties.

[11] The Applicant provided a number of indicative rosters and calculations. The rosters demonstrated that where some employees were to work during a week that included a public holiday, some employees would not be better off overall. The Applicant submits that where the calculations show that some employees would not be better off where they were to work a public holiday, that the Commission should note that over a 52 week period those employees are being advantaged under the Agreement by $2,860.43 and $2,602.10 per annum, which would make up the difference if those employees were to work nine public holidays.

[12] Upon review of the correspondence and undertakings I am satisfied the Agreement meets the better off overall test.

[13] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is 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 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 November 2014. The nominal expiry date of the Agreement is 1 July 2018.

[17] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Annexure A

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