P C M & M Investment Trust T/A Sovereign Restaurants

[2014] FWCA 6487

[2014] FWCA 6487

FAIR WORK COMMISSION

DECISION

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

P C M & M Investment Trust T/A Sovereign Restaurants
(AG2014/6978)

SOVEREIGN RESTAURANTS ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 16 SEPTEMBER 2014

Application for approval of the Sovereign Restaurants Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Sovereign Restaurants 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 29 August 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to the Agreement. In particular, the concerns related to casual rates of pay, public holidays and superannuation. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 5 and 15 September 2014.

Undertaking

Public holidays

[4] With respect to clause 13 - Public Holidays of the Agreement, it provides a penalty for work undertaken on a public holiday which is less than the penalty the employee would have received 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 the Applicant to provide indicative rosters and calculations that include public holidays to demonstrate how employees are better off overall under the Agreement.

[6] The Applicant has advised that upon review of the Commission’s concerns it has provided an undertaking to increase the penalty rates for work undertaken on a public holiday with respect to permanent and casual employees classified as level 2 and level 3. The Applicant has provided indicative rosters covering the period including the Queen’s Birthday public holiday in June.

[7] Having considered the undertaking provided by the Applicant and based on the indicative rosters and calculations, I am satisfied that employees are better off overall under the Agreement.

[8] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Casual rates of pay

[9] In correspondence to the Applicant, the Commission noted that clause 12 - Wage Increases, and in particular, sub clause 12.2, states that the minimum hourly rates for casual employees will at all times during the nominal term of the Agreement remain 22% above the base rates of pay for each applicable classification. Upon reviewing the casual rates of pay contained in the Agreement the Commission informed the Applicant that the casual rates of pay appeared to be slightly less than 22% above the permanent rates of pay.

[10] The Applicant’s legal representative submits that sub clause 12.2 falls within clause 12 which is entitled ‘wage increases’, and the hourly rate of pay for casual employees will remain 22% above base rates in the context of any future wage increases only, not the initial rates set by Schedule A.

Superannuation

[11] In correspondence to the Applicant, the Commission sought clarification in relation to clause 15 - Superannuation, and in particular, sub clause 15.1 as to the name of the employer’s default superannuation fund and how it satisfies the requirement of s.194(h) of the Act.

[12] The Applicant has advised the Commission that the default superannuation fund is the Retail Employees Superannuation Trust (REST) which offers a MySuper product.

[13] 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.

[14] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 23 September 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[15] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

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