Miseski Enterprises Pty Ltd T/A Muffin Break
[2010] FWA 1769
•4 MARCH 2010
[2010] FWA 1769 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/20128)
Arctic Solutions NSW Pty Ltd
(AG2009/20149)
JDJVIC Pty Ltd T/A Muffin Break Traralgon
(AG2009/20190)
KRE8 Pty Ltd T/A Subway Norwood
(AG2009/20207)
Iain & Kim Hunter Pty Ltd T/A Muffin Break Victoria Point
(AG2009/20220)
6Quid Pty Ltd
(AG2009/20223)
P K Stephens Pty Ltd
(AG2009/20225)
Machri Pty Ltd & Pavlidis Investments Pty Ltd & Art Jarvis Pty Ltd & Fine Thanks Pty Ltd T/A Subway Laverton
(AG2009/20302)
COMMISSIONER GOOLEY | MELBOURNE, 4 MARCH 2010 |
Application for approval of a single-enterprise agreement by People in SmallBiz.
[1] These applications were made under s.185 of the Fair Work Act 2009 (the FW Act) for approval of the following enterprise Agreements:
- the Miseski Enterprises Pty Ltd Employee Enterprise Agreement;
- Arctic Solutions NSW Pty Ltd Employee Enterprise Agreement;
- JDJVIC Pty Ltd Employee Enterprise Agreement;
- KRE8 Pty Ltd Employee Enterprise Agreement;
- Muffin Break Victoria Point Employee Enterprise Agreement;
- 6 Quid Pty Ltd Employee Enterprise Agreement;
- PK Stephens Pty Ltd Employee Enterprise Agreement; and
- Machri Pty Ltd & Art Jarvis Pty Ltd & Fine Thanks Pty Ltd Employee Enterprise Agreement.
[2] The applications were made by Mr Robert Sharp from People in SmallBiz who was, in each case, the bargaining representative appointed by the employer.
[3] On 13 January 2010, I wrote to Mr Sharp in relation to the PK Stephens Pty Ltd Employee Enterprise Agreement (the Stephens Agreement) and drew his attention to the decision of Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors 1 as the Stephens Agreement was in substantially the same terms as those considered by Commissioner Whelan. I invited Mr Sharp to provide written submissions on the matters raised in that decision.
[4] On 14 January 2010 I wrote to Mr Sharp about the remaining agreements and again advised that the agreements were in substantially the same terms as those considered by Commissioner Whelan in Bendy Q P/L t/a Jamaica Blue Knox City & Ors. In particular they were in substantially the same terms as AG2009/13758 which Commissioner Whelan found did not meet the no disadvantage test.
[5] I further advised that, prior to determining a final view on whether the agreements met the no disadvantage test, he could provide written submissions which addressed the matters raised in paragraphs [35] – [42] of Commission Whelan’s decision with reference to each agreement.
[6] I further stated that for each agreement he had provided declarations signed by persons who purported to be bargaining representatives of members of an employee organisation. I asked him to advise which employee organisation the employees represented.
[7] Mr Sharp did not respond to any correspondence nor did he respond to any phone messages left for him by my Associate.
[8] On 5 February 2010 a Notice of Listing was sent to Mr Sharp and to the employers for each agreement. On 10 February 2010 my chambers was contacted by two of the employers advising that they have not been able to make contact with Mr Sharp. My chambers then forwarded to each employer a copy of the letter forwarded to Mr Sharp in January 2010. One employer sought and was granted an adjournment to give her time to consider and to respond to the correspondence. None of the other employers or Mr Sharp attended the hearing of these applications on 11 February 2010 nor made contact with my chambers seeking an adjournment.
[9] On 11 February 2010 I determined, in each case, that the agreements could not be approved because they did not satisfy the no disadvantage test and I now publish my reasons.
The Applications and Statutory Declarations
[10] In each application signed by Mr Sharp, he advised that the employees acted as their own bargaining representatives.
[11] For each agreement, the employees signed an F18 form which is the declaration of employee organisation. For each agreement the individual who signed the form stated that he or she was a bargaining representative for other members of the employee organisation. The Statutory Declarations do not appear to be witnessed by a person who is authorised under the Statutory Declaration Act 1959 to witness a Statutory Declaration. In some instances they are witnessed by other employees and in some instances they advise that the title of the person who witnessed the Statutory Declaration was “Miss” or “Mr”. It is inconceivable that a person authorised to witness Statutory Declarations under the Statutory Declaration Act 1959 would complete the form in this manner.
[12] I am concerned that, in these matters, Mr Sharp has provided Fair Work Australia with Statutory Declarations in support of the applications for approval which were not properly witnessed and are misleading.
[13] Commissioner McKenna 2 had similar Statutory Declarations in a number of other approval applications lodged by Mr Sharp. I endorse Commissioner McKenna’s comments at paragraph [11] where she found that it was likely that employees were simply asked, or instructed, by their employer to sign the Form F18 and that they did so without understanding the nature of the form they were signing.
[14] I further note that like the Employer Statutory Declarations before Commissioner McKenna, the Employer Statutory Declarations in these matters are formulaic in their responses. All contain the same answers to questions 2.3, 2.4 and 2.5 as were provided in the applications before Commissioner McKenna. As Commissioner McKenna noted, despite the advice that each employee was their own bargaining representative the Statutory Declarations advised the employees and their bargaining representatives were provided with a copy of the Agreement and were notified of the time place and voting method. In answer to question 2.5 the common response was:
“All employees and their bargaining agent(s) were provided with a letter indicating that if under legal age that they were required to provide information to their legal guardian. Likewise, if from a non-English speaking background and would like further explanation,further [sic] assistance would be provided.”
[15] The answer in each Statutory Declaration replicated the typographical error identified by Commissioner McKenna. All this suggests that the Statutory Declarations are a template provided by Mr Sharp to the employers to sign and do not reflect the considered answers by the deponents to each question. Further, I do not consider the response to question 2.5 in the employer declaration form satisfies the requirements in s.180(4) of the FW Act that the employer take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the employees. The response to question 2.5 does not provide any evidence of any explanation being provided to employees.
[16] Each agreement has attached a document headed “Additional Information – No Disadvantage Test”. While there are some differences in these documents they all state that no overtime is worked by employees, one public holiday is worked on average by employees and uniforms do not require ironing. The explanation of the preferred hours arrangements and contingent benefits are the same for each agreement. It would be surprising to find that these disparate businesses in different states have identical patterns of work. However given that there was no appearance at the hearing this matter was not able to be explored.
Miseski Enterprises Pty Ltd Employee Enterprise Agreement (AG2009/20128)
[17] This Agreement was accompanied by an Employer Statutory Declaration signed by John Miseski and witnessed by Yasmin Mert. In the section of the Statutory Declaration where the title of the person before whom the statutory declaration is made is required to be given, Mrs Mert has advised that her title is “Mrs.” It is inconceivable that a person authorised under the Statutory Declaration Act 1959 to witness a Statutory Declaration would complete the form in this manner.
[18] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[19] The employer cites the National Fast Food Retail Award 2000 3 (the Fast Food Award) as the relevant award for the purpose of the no disadvantage test. I have used this award when assessing the Agreement.
[20] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[21] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[22] In addition the Agreement provides for other lesser entitlements than provided in the Fast Food Award. Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
Hours of work
[23] The Agreement provides for the averaging of 38 hours of work over a 52 week period with a minimum call of three hours, subject to availability and preferred hours of work requested by the employees. The maximum number of hours on any one day is twelve and the employees are not rostered for more than six consecutive days without one day off without mutual agreement. Employees work a maximum of ten days per fortnight unless mutually agreed otherwise.
[24] In contrast the Fast Food Award provides for the working of a 38 hour week which at most can be averaged over a four week period. The maximum number of hours in one day is eleven hours between 6.00 a.m. and midnight. The Fast Food Award provides that the number of days worked per week is five except that if six are worked in one week only four may be worked the next week 4.
[25] Part-time employees under the Fast Food Award are entitled to a regular pattern of work and that agreed pattern can be varied by agreement and any hours worked in excess of the agreed hours of work are overtime 5. By contrast clause 12 of the Agreement only provides for overtime after a part-time employee works 38 hours and then overtime is at single time in contrast to the Fast Food Award where overtime is paid at either time and a half or double time6.
Rosters
[26] Under the Fast Food Award employees shall be given a regular starting and ceasing time for each day which shall not be changed except upon not less than seven days notice or unless by agreement with the employee or in the event of an emergency 7, whereas under clause 8 of the Agreement rosters can be changed on 24 hours notice.
Public Holidays
[27] The Agreement at clause 10 does not provide for any additional public holiday entitlements should such public holidays be declared or gazetted. This is in contrast to the Fast Food Award. Public holidays are worked at single time compared to the Fast Food Award where the penalty is double time and a half 8. Further the Fast Food Award provides arrangements for employees rostered on actual holidays when substitution occurs. No such provisions are found in the Agreement.
Preferred Hours Arrangements
[28] The Agreement provides for the payment of a lower rate of pay for employees who elect to work preferred hours to suit their personal circumstances. In Hao Yun Pty Ltd Employee Enterprise Agreement 9 Commissioner McKenna considered an identical preferred hours clause to that contained in this Agreement. Commissioner McKenna referred to the decisions of Commissioner Whelan and Commissioner Smith which dealt with preferred hours arrangements:
“In Bendy Q P/L t/s Jamaica Blue Knox City & Ors [2009] FWA 1869, Whelan C recently considered a number of applications for the approval of enterprise agreements which appear, from the decision, to follow a similar, but not identical, template to the applications before me. Whelan C said this in relation to the preferred hours arrangements:
[41] It is not, in my view, appropriate nor does it pass the no disadvantage test, to include in an agreement a general provision which removes penalty provisions from the employees’ rate of pay on the basis that they have nominated certain hours during which they are available to work. If the employer requires work to be performed during those hours and the employee is able to perform that work then that is a normal incident of employment and not a special arrangement which might be covered by either section 65 or the type of arrangements covered by section 203. It is notable that if employees were to be engaged under these ‘preferred hours’ arrangements they would be paid less than if the relevant award applied.
I note also that in Bupa Care Services, ANF and HSU Enterprise Agreement 2009 [2010] FWA 16 Smith C recently considered a preferred hours arrangement, albeit the clause differed from the provisions of these agreements. In declining to approve the agreement, Smith C noted:
[17] Against this background, it can be seen that this proposed clause represents a cost saving rather than a benefit. It would be difficult to suggest that an employee would see the benefit in being paid less than that which would ordinarily apply. In short, it is the gift of employment that the employer is offering provided it is at a discounted rate from the safety net. This is a concept which, in my view, has far reaching implications for the operation of the safety net of wages and conditions.” 10
[29] Commissioner McKenna stated that she agreed“with the approach to preferred hours adopted in these quotes, and generally, in Bendy Q P/L t/s Jamaica Blue Knox City & Ors and Bupa Care Services, ANF and HSU Enterprise Agreement 2009. To the extent three of the agreements contain preferred hours arrangements, they, self evidently, fail the no disadvantage test - given the displacement of entitlement to higher rates that otherwise would attach to the performance of work during those hours.” 11
[30] I agree with the approach to preferred hours adopted in the decisions of Commissioners Whelan, Smith and McKenna. Whilst in this case, the preferred hours rate is in excess of the minimum rate of pay in the Fast Food Award, the amount paid would not compensate an employee who predominately works on weekends for the loss of penalties paid under the Fast Food Award and hence I find that the Agreement fails the no disadvantage test due to inclusion of such a provision.
Uniforms
[31] Clause 17 of the Agreement provides that an employee may be required to pay a deposit for uniforms. No such provision exists in the Fast Food Award. Further the Fast Food Award provides that where an employee is required to launder their uniform they are paid a laundry allowance of $4.53 per garment per week 12.
Annual Leave
[32] Clause 19(d) of the Agreement permits the cashing in of up to two week’s annual leave. This is inconsistent with s.93 of the FW Act.
Parental Leave and Compassionate leave for casual employees
[33] Clause 22 of the Agreement which provides for parental leave is not consistent with the National Employment Standards. Further the Agreement does not provide for unpaid compassionate leave for casual employees. Neither of these issues affects an assessment of the no disadvantage test as the National Employment Standards will override a lesser entitlement in an agreement.
Termination of employment
[34] Clause 25(h) of the Agreement provides the employer with the right to terminate the employee’s employment without notice in circumstances that may be contrary to sections 117 and 123 of the FW Act and may be an unlawful term as defined in s.194(d) of the FW Act.
[35] Further clause 16(b) of the Agreement provides that at any time during the probationary period the Company can terminate employment by giving one day’s notice. This provision is not consistent with s.117 of the FW Act which provides that the minimum notice period for an employee with less than one year’s service is one week.
Accident Make Up Pay
[36] The Agreement does not provide for Accident Make Up Pay which is provided for in the Fast Food Award 13.
Flexibility Clause
[37] Clause 4 of the Agreement provides for a flexibility clause. It does not meet the requirements of sections 203(2)(b) and 203(4) of the FW Act. It does not provide that the flexibility agreement be about permitted matters and not unlawful matters. It further provides that the employee must not be disadvantaged while the FW Act requires that the employee must be “better off overall”.
Dispute Resolution
[38] Clause 6 of the Agreement does not expressly provide that the dispute resolution procedure will deal with disputes in relation to the National Employment Standards. It does not provide that an employee may be represented at any stage of the procedure.
Conclusion
[39] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[40] For the reasons set out above the Agreement does not pass the no disadvantage test and the application for approval is dismissed.
Muffin Break Victoria Point Employee Enterprise Agreement (AG2009/20220)
[41] The Employer’s Statutory Declaration in this matter was witnessed by Ms Mackay. There is no indication on the Statutory Declaration as to the capacity of Ms Mackay to witness the Statutory Declaration.
[42] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[43] This Agreement is in the same terms as the Agreement in AG2009/20128 except the rates of pay are lower. The Statutory Declaration advises that the relevant award is this Retail Take-Away Food Award – South Eastern Division 2003 14(the Take-Away Food Award).
[44] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[45] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[46] In addition the Agreement provides for other lesser entitlements than provided in the Take-Away Food Award.
[47] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
Hours of Work
[48] The Agreement provides for the averaging of hours of work over a 52 week period with a minimum call of three hours, subject to availability and preferred hours of work requested by the employees. The maximum number of hours on any one day is twelve and the employees are not rostered from more than six consecutive days without one day off without mutual agreement. Employees work a maximum of ten days per fortnight unless mutually agreed otherwise.
[49] The Take-Away Food Award provides for an average of 38 hours to be worked on any five days out of seven and can only be averaged over a four week period. The minimum call is four hours and the maximum number of hours per day is ten. The Take-Away Food Award provides for some variation by agreement within certain limitations 15.
[50] Part-time employees are entitled under the Take-Away Food Award to agree on the number of hours worked per week and the minimum call is two hours and the maximum number of hours is ten. Part-time employees work a minimum of 12 hours and a maximum of 35 hours in a week and must not work on more than five days per week. A part-time employee is entitled to overtime if they work in excess of the number of hours agreed in writing between the employer and employee 16. In contrast the Agreement only provides for the payment for overtime after 38 hours and then it is paid at single time.
[51] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[52] I rely on the reasons set out above in AG2009/20128 in relation to rosters, public holidays, preferred hours arrangements, annual leave and termination of employment.
[53] For the reasons set out above the Agreement does not pass the no disadvantage test and the application for approval is dismissed.
Arctic Solutions NSW Pty Ltd Enterprise Agreement (AG2009/20149)
[54] The Employer Statutory Declaration in this matter was witnessed by Judith Hicks. There is no indication on the Statutory Declaration as to the capacity of Ms Hicks to witness the Statutory Declaration.
[55] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[56] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay are lower. The Statutory Declaration advises that the relevant award is the Retail Take-Away Food Award – South-Eastern Division 2003 (the Take-Away Food Award).
[57] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[58] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[59] In addition the Agreement provides for other lesser entitlements than provided in the Take-Away Food Award.
[60] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
[61] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[62] For the reasons set out above in relation to AG2009/20128 and AG2009/20220 I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
JDJVIC Pty Ltd Employee Enterprise Agreement (AG2009/20190)
[63] The Employer Statutory Declaration in this matter was witnessed by a person who in the section of the Statutory Declaration where the title of the person before whom the statutory declaration is made is required, the person advises that their tile is “Manager of Just Jeans”. It is inconceivable that a person authorised under the Statutory Declarations Act 1959 to witness a statutory declaration would complete the form in this manner.
[64] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[65] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay are lower in Attachment A and the same in Attachment B. The Statutory Declaration advises that the relevant award is the National Fast Food Retail Award 2000 (the Fast Food Award).
[66] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[67] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[68] In addition the Agreement provides for lesser entitlements than provided in the Fast Food Award.
[69] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
[70] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[71] For the reasons set out above, and the reasons set out in relation to AG2009/20128, I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
KRE8 Pty Ltd Employee Enterprise Agreement (AG2009/20207)
[72] The Employer Statutory Declaration in this matter was witnessed by Mrs Lyn Revell. In the section of the Statutory Declaration where the title of the person before whom the Statutory Declaration is made is required, Mrs Revell has advised that her title is “Mrs Lynette Revell.” It is inconceivable that a person authorised under the Statutory Declarations Act 1959 to witness a Statutory Declaration would complete the form in this manner.
[73] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[74] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[75] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay are higher. The Statutory Declaration advises that the relevant award is the Delicatessens, Canteens, Unlicensed Cafes and Restaurants Etc. Award 17(the Delicatessens Award).
[76] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[77] In addition the Agreement provides for lesser entitlements than provided in the Delicatessens Award.
[78] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
Hours of Work
[79] The Agreement provides for the averaging of hours of work over a 52 week period with a minimum call of three hours, subject to availability and preferred hours of work requested by the employees. The maximum number of hours on any one day is twelve and the employees are not rostered from more than six consecutive days without one day off without mutual agreement. Employees work a maximum of ten days per fortnight unless mutually agreed otherwise.
[80] The Delicatessens Award provides for the working of a 38 hour week which may be averaged over four weeks. The maximum number of ordinary hours on any day is nine hours 18. Part-time employees must be engaged for a minimum of twelve hours per week and must not be worked on more than five days and the minimum call is three hours19.
[81] I rely on the reasons set out above in AG2009/20128 in relation to rosters, public holidays, preferred hours arrangements, annual leave and termination of employment.
[82] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[83] For the reasons set out above I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
6 Quid Pty Ltd Employee Enterprise Agreement (AG2009/20223)
[84] The Employer Statutory Declaration in this matter was witnessed by Annabel Brennan. In the section of the Statutory Declaration where the title of the person before whom the Statutory Declaration is made is required, Ms Brennan has advised that her title is “Annabel Brennan” It is inconceivable that a person authorised under the Statutory Declarations Act 1959 to witness a Statutory Declaration would complete the form in this manner.
[85] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[86] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay Attachment A are higher but the preferred hours rates are the same. The Statutory Declaration advises that the relevant award is the National Fast Food Retail Award 2000 (the Fast Food Award).
[87] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[88] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[89] In addition the Agreement provides for other lesser entitlements than provided in the Fast Food Award.
[90] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
[91] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[92] For the reasons set out above in relation to AG2009/20128 I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
P K Stephens Pty Ltd Employee Enterprise Agreement (AG2009/20225)
[93] The Employer Statutory Declaration in this matter was witnessed by Jemma Stephens There is no indication on the Statutory Declaration as to the capacity of Ms Stephens to witness the Statutory Declaration.
[94] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[95] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay are lower in Attachment A. The Statutory Declaration advises that the relevant award is the Shop Employees (State) Award 20 (the State Award).
[96] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[97] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[98] In addition the Agreement provides for other lesser entitlements than provided in the State Award.
[99] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
Hours of Work
[100] The Agreement provides for the averaging of hours of work over a 52 week period with a minimum call of three hours, subject to availability and preferred hours of work requested by the employees. The maximum number of hours on any one day is twelve and the employees are not rostered from more than six consecutive days without one day off without mutual agreement. Employees work a maximum of ten days per fortnight unless mutually agreed otherwise.
[101] The State Award provides for a 38 hour week over five days of the week averaged at most over four weeks 21. Part-time employees must be rostered for at least nine hours per week and no more than 30 hours per week. If rostered more than 30 hours per week, the part-time employee must be paid as a weekly employee22.
[102] I rely on the reasons set out above in AG2009/20128 in relation to rosters, public holidays, preferred hours arrangements, annual leave and termination of employment.
[103] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[104] For the reasons set out above I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
Machri Pty Ltd & Pavlidis Investments Pty Ltd & Art Jarvis Pty Ltd & Fine Thanks Pty Ltd Enterprise Agreement (AG2009/20302)
[105] In this matter the four companies, Machri Pty Ltd, Pavlidis Investments Pty Ltd, Art Jarvis Pty Ltd and Fine Thanks Pty Ltd, are listed as the employers to be covered by the Agreement. The Statutory Declaration states that the Agreement is to cover a single enterprise. In my correspondence to Mr Sharp dated 14 January 2010 I asked if each of the corporations employs employees to be covered by the Agreement. I received no response to this inquiry.
[106] The Employer Declaration was witnessed by Kim Luby. There is no indication on the Statutory Declaration as to the capacity of Kim Luby to witness the Statutory Declaration.
[107] The failure to provide a declaration witnessed by a person authorised to witness the Statutory Declaration may invalidate the application. However, given the conclusion I reach on the no disadvantage test it is not necessary to decide whether there is in fact a valid application before me.
[108] This Agreement is in the same terms as the Agreement in AG2009/20128 except for the classifications in clause 2 and the rates of pay are higher. The Statutory Declaration advises that the relevant award is the National Fast Food Retail Award 2000 (the Fast Food Award).
[109] The Agreement has attached a document headed “Additional Information – No Disadvantage Test”. I have had regard to this document in assessing the Agreement. This document, while setting out the opening hours, did not provide any information about the pattern of work actually worked by employees.
[110] The Agreement provides at Attachment A for Wage Rates and at Attachment B the Preferred Hours Arrangement Wage Rates which are a lesser rate than the rates in Attachment A. The Agreement does not provide for annual leave loading, overtime rates, public holiday penalties, weekend/late night penalty rates or uniform allowance.
[111] In addition the Agreement provides for other lesser entitlements than provided in the Fast Food Award.
[112] Without information about the pattern of work of employees I am not able to be satisfied that the rates compensate employees for the loss of these entitlements.
[113] Some of these matters may have been resolved had Mr Sharp responded to the correspondence or appeared at the hearing however no submissions were put and the decision was made on the documents before me.
[114] For the reasons set out above, and the reasons set out in relation to AG2009/20128, I find that this Agreement does not pass the no disadvantage test and hence I dismiss the application.
COMMISSIONER
Hearing details:
2010.
Melbourne:
February 11.
1 [2009] FWA 1869.
2 [2010] FWA 383.
3 AP806313.
4 Ibid at clause 23.1.
5 Ibid at clause 11.1.
6 Ibid at clause 25.
7 Ibid at clause 23.2.4.
8 Ibid at clause 27.
9 [2010] FWA 383.
10 Ibid at [17] and [18].
11 Ibid at [19].
12 AP806313, National Fast Food Retail Award 2000 at clause 17.1.7.
13 Ibid at clause 36.
14 AN140258.
15 Ibid at Part 6.
16 Ibid at clause 4.2.
17 AN150170.
18 Ibid at Part 6.
19 Ibid at clause 4.2.
20 AN120499.
21 Ibid at clause 10.
22 Ibid at clause 4.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR994576>
2
3
0