Lalwani Enterprises Pty Ltd T/A Gloria Jeans Dural

[2014] FWCA 4992

[2014] FWCA 4992

FAIR WORK COMMISSION

DECISION

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

Lalwani Enterprises Pty Ltd T/A Gloria Jeans Dural
(AG2014/1489)

LALWANI ENTERPRISES PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	PERTH, 25 JULY 2014

Application for approval of the Lalwani Enterprises Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Lalwani Enterprises Pty Ltd Enterprise Agreement 2013 (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] The Commission wrote to the Applicant via its representative on 7 July 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to Sunday and public holiday penalties, and superannuation. The Application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 16 July 2014.

Sunday’s and Public holidays

[4] With respect to Schedule A - Minimum Rates of Pay, and clause 14 - Public Holidays of the Agreement, the Commission noted in its correspondence to the Applicant that the penalties received for work on Sunday’s and public holiday’s were less than the penalties provided under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] The Commission requested a number of indicative rosters and calculations to demonstrate that employees are better off under the Agreement when they work on Sunday’s and public holidays.

[6] The Applicant has provided a number of indicative rosters and calculations that demonstrate employees are better off overall under the Agreement than they would be under the Award where they work in a roster period which includes Sunday’s and public holidays.

[7] Upon review of the indicative rosters and calculations I am satisfied that employees would be better off overall despite the Sunday and public holiday penalties being less than the penalties provided under the Award.

Superannuation

[8] In its correspondence to the Applicant the Commission noted that clause 16 - Superannuation, and in particular, sub clause 16.1 of the Agreement does not name the employer’s default superannuation fund and thus does not satisfy the requirements of section 194(h) of the Act.

[9] In response to the Commission’s request for clarification of this matter, the Applicant advised that the default superannuation fund was MLC.

[10] Further correspondence was sent to the Applicant requesting information clarifying the correct name of the employers default superannuation fund. In response to the Commission’s request for further clarification of this matter, the Applicant advised that the name of the default superannuation fund was MLC Masterkey Business Express, which has a product called MLC MySuper that is compliant with s194(h) of the Act.

[11] Upon review of the correspondence and undertakings, I am satisfied that employees would be better off overall under the Agreement.

[12] The Agreement will cover all employees employed by the employer and classified in accordance with the classifications described in clause 4 - Classifications of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

[13] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[14] The Agreements is approved. In accordance with section 54(1), the Agreement will operate from 31 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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