Khumari Enterprises Pty Ltd T/A Seven Eleven Flinders Street

[2010] FWA 2227

[2010] FWA 2227

FAIR WORK AUSTRALIA

DECISION

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

Khumari Enterprises Pty Ltd T/A Seven Eleven Flinders Street
(AG2009/14468)

COMMISSIONER FOGGO MELBOURNE, 19 MARCH 2010

Khumari Enterprises Pty Ltd Employee Enterprise Agreement.

[1] This is an application for approval of the Khumari Enterprises Pty Ltd Employee Enterprise Agreement (the Agreement) made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application is made on behalf of Khumari Enterprises Pty Ltd t/as Seven Eleven Flinders Street (the Applicant) by Mr Robert Sharp of People in SmallBiz.

[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.

[3] On 27 January 2010 I wrote to Mr Sharp and the named contact for the Applicant, Mr Gary Handa, requesting further information on a number of areas where it appeared the agreement may be deficient. There email stated:

“RE: AG2009/14468

s.185 Application for approval of an enterprise Agreement.

I have been allocated your application for approval of the Khumari Enterprises Pty Ltd Employee Enterprise Agreement.

As you are aware the Fair Work Act 2009 (the Act) contains mandatory provisions which must be satisfied prior to approval of an Agreement.

One of the requirements relates to the No Disadvantage Test (NDT) for applications lodged prior to 1 January 2010 after which time the Better off Overall Test (BOOT) applies.

I seek further information regarding your application. Form F17 is a document which is compiled from different documents. In its current form I am unable to determine that Mr Handa actually signed the Form F17 as different documents have been photocopied into one. I note also that the date has been amended. The Declaration purported to be by Mr Handa also states that there was no bargaining agent as the employees bargained themselves yet a bargaining agent is referred to elsewhere. Would you please forward to me a copy of the letter to which question 2.4 refers so that I might understand precisely whether or not the bargaining notice was issued and whether there was or was not a bargaining agent.

You state that the relevant Award for the purposes of the NDT is the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 AP796250CRV (Payscale and Conditions). I have checked those rates and am unable to match the rates with a comparable rate from the Award. I note that there are no penalty rates, holiday rates and overtime paid by the Agreement. In this circumstance it is essential that the proposed flat rate of pay compensate for the loss of penalty rates. Would you please advise me how you have arrived at the proposed rate and the specific clause in the relevant award on which the rate is based.

I look forward to your response.”

[4] No response was received from Mr Sharp or the Director of the company who completed the Form F17. In such circumstances I cannot approve the proposed Agreement because I do not believe that the statutory requirements for approval have been satisfied.

[5] The extant application is for approval of an Agreement in virtually identical terms to previous agreements lodged by Mr Sharp which I have not approved. 2 I rely on the reasoning advanced in that decision as applicable to this application as the circumstances are the same.

[6] Briefly summarised, that decision found that a flat rate of pay allegedly incorporating all public holidays, annual leave loading, allowances and all rates arising from weekend, overtime and late night penalties is paid for all work. On the basis of the Form F17 declaration and the explanations advanced in support of this single incorporated rate, I was not satisfied that it would provide appropriate compensation for hours to be worked. Neither was I satisfied that with the provision of a flat rate of pay associated with the ‘preferred hours’ clause. The same applies to this application.

[4] This application also lacks certainty from the manner in which the rosters are drawn up and distributed and it is insufficient to state in an enterprise agreement that ‘typically’ some action such as drawing up a roster a week in advance will occur. The same can be said regarding payment of wages when employees should know what the arrangement is and whether payment occurs weekly or fortnightly. This clause may be no more than loosely worded but it is essential that once a pay period is determined it remain in place.

[7] Similarly there is also a differentiation in the manner in which public holidays are recompensed. A ‘holiday’ in lieu of Christmas Day, Boxing Day and Australia Day occurs but not against any of the other public holidays if they are worked.

[8] A further issue which has been identified as fatal to the approval of this application is the nature of the application itself. It is unacceptable to lodge an application which is a cut and paste of different documents and rely on the document as having integrity particularly where they have allegedly been signed by a Justice of the Peace. This issue was also referred to as one of the reasons for non approval in a recent decision of Commissioner Gooley regarding a number of applications lodged by Mr Sharp. 3

[9] The agreements also follow the same pattern as those agreements which have previously been considered by the Tribunal and not approved. I refer specifically to the decision of Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors. 4

[10] Commissioner McKenna also considered a number of applications lodged by Mr Sharp in the same or similar terms as the extant application before me. 5

[15] The Statutory Declarations in this application share the same template and the responses which were referred to and rejected by Commissioner McKenna in the applications before her. The approach which Mr Sharp has adopted can kindly be described as cavalier but his approach to statutory requirements raises serious legal issues.

[11] I rely on the decision of Commissioners Whelan, Gooley and McKenna and adopt their reasoning to the extent that the terms of the proposed agreements are identical in all applications.

[12] In lieu of any response by the Applicant or his representative, it has not been possible to contemplate any undertakings which the employer might consider to make the Agreement one which might be approved.

[13] On the basis of the information before me and for the reasons expressed above, this application does not in my view meet the statutory requirements of the Act. It does not pass the pre-approval steps required for approval of an agreement, it does not meet the general requirements of s.186 of the Act and does not pass the no-disadvantage test.

[14] The application is dismissed.

COMMISSIONER

 1   Item 2, Part 1, of Schedule 2.

 2   [2010] FWA 1799.

 3   [2010] FWA 1769.

 4   [2009] FWA 1869.

 5   [2010] FWA 383.

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