Lokrum Pty ltd ATF The McClure Family Trust T/A Grill'd Norwood

[2014] FWCA 4777

FAIR WORK COMMISSION

DECISION

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

Lokrum Pty ltd ATF The McClure Family Trust T/A Grill'd Norwood
(AG2014/1345)

GRILL'D NORWOOD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	PERTH, 17 JULY 2014

Application for approval of the Grill'd Norwood Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Norwood 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 7 July 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to overtime under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 14 July 2014.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime, at overtime rates for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite not receiving overtime, an entitlement that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant is a small business that currently employs two salaried employees; both employees are classified as Assistant Business Manager’s. The number of salaried employees engaged is not relevant to the application of the better off overall test. The Agreement provides for such a classification, it must be assessed against the better off overall test.

[7] I am satisfied upon review of the rosters and calculations provided by the Applicant that despite salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 24 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

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CaseChat Overview and Summary

Lokrum Pty Ltd, trading as Grill'd Norwood, brought an application to the Fair Work Commission seeking approval of the Grill'd Norwood Enterprise Agreement 2014. The dispute centred on whether the agreement met the necessary standards for approval under the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable, while no other party contested its approval. The Fair Work Commission was tasked with determining whether the agreement satisfied the requirements of the Act, particularly focusing on whether it provided for fair terms and conditions for the employees involved.

The primary legal issue before the Commission was whether the agreement contained all the mandatory terms as stipulated by the Fair Work Act and whether it met the 'better off overall test'. This test ensures that employees are not worse off financially under the new agreement compared to their previous conditions. The Commission had to carefully consider the provisions of the agreement, particularly those relating to minimum wages, penalty rates, leave entitlements, and other conditions of employment. Additionally, the Commission needed to ensure that the agreement was free from any unfair terms that might contravene the principles of the Act.

The Fair Work Commission found that the Grill'd Norwood Enterprise Agreement 2014 was fair and reasonable, as it met all the mandatory requirements of the Fair Work Act. The Commission was satisfied that the agreement provided for fair terms and conditions and that employees would be better off overall under the new agreement. The Commission also noted that the agreement did not contain any terms that were unfair within the meaning of the Act. Consequently, the Commission approved the agreement, finding that it complied with all statutory requirements and was in the best interests of the employees.

As a result of the Commission's approval, the Grill'd Norwood Enterprise Agreement 2014 was formally accepted and is now in effect. This decision provides clarity for the parties involved and ensures that the agreement will govern the employment terms and conditions of the employees at Grill'd Norwood. The approval of the agreement also sets a precedent for similar agreements within the industry, ensuring that all parties adhere to fair and reasonable terms as mandated by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established