PA Enterprise Pty Ltd T/A Gloria Jeans Glenmore Park

[2014] FWCA 8843

[2014] FWCA 8843

FAIR WORK COMMISSION

DECISION

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

PA Enterprise Pty Ltd T/A Gloria Jeans Glenmore Park
(AG2014/8829)

PA ENTERPRISE PTY LTD - ENTERPRISE AGREEMENT 2014 - 2018

Fast food industry
COMMISSIONER BULL	SYDNEY, 8 DECEMBER 2014

Application for approval of the PA Enterprise Pty Ltd - Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the PA Enterprise Pty Ltd - Enterprise Agreement 2014 - 2018 (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 legal representative on a number of occasions with respect to concerns it had with the Agreement. In particular, the concerns related to the hours of work, meal allowance, meal breaks and rates of pay.

[3] A Form 18A - Statutory declaration of employee representative in relation to application for approval of an enterprise agreement, accompanied the application. The Form was completed by Bindi Manansala who is an employee covered by the Agreement, however, she was not appointed as the bargaining representative of any or all of the employees. Ms Manansala was appointed to sign the agreement on behalf of the other employees on 20 August 2014 by virtue of the ballot form. The Applicant confirmed with the Commission that there was no employee bargaining representative involved in the agreement making process.

[4] Correspondence was received from the Applicant on 31 October, 19 and 27 November and 1 and 4 December 2014.

Undertakings

Hours of work

[5] In its correspondence to the Applicant, the Commission referred to clause 4.1.2 - Hours of Work - Part-Time Employees, and in particular, sub clause 4.1.2(b) of the Agreement. The clause provides that if an employee is 18 years and under they may agree to work a minimum 2 hour shift.
[6] The Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, provides that an employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

[7] The Applicant has provided an undertaking with respect to sub clause 4.1.2(b) that a minimum of 3 hours per shift and a maximum of 10 hours per shift will be applied.

Meal allowance

[8] In its correspondence to the Applicant, the Commission referred to clause 4.2.4 - Meal Allowance, which provides for a meal allowance of $11.76 and where such overtime exceeds 4 hours a further meal allowance of $10.61 will be paid. The Commission notes that the Award provides for a higher meal allowance and requested correspondence outlining how employees were better off under the Agreement when compared to the allowance they would have been afforded under the Award.

[9] The Applicant has provided an undertaking with respect to sub clause 4.2.4 to increase the meal allowance to the allowance provided under the Award. That is:

“4.2.4 Meal Allowance

An Employee required to work more than one hour of overtime after the Employee's ordinary time of ending work without being given 24 hours' notice, will either be provided with a meal or paid a meal allowance of $11.99. Where such overtime exceeds 4 hours a further meal allowance of $10.82 will be paid. No meal allowance will be paid where an Employee could reasonably return home for a meal within the period allowed.”

Meal breaks

[10] In its correspondence to the Applicant, the Commission requested the Applicant to provide an undertaking with respect to clause 4.4 - Breaks, to apply the equivalent rest and meal breaks to those provided under the Award.

[11] The Applicant has provided an undertaking, that it will apply the following meal and rest breaks:

“4.4 BREAKS

Breaks will be given as follows:

Hours worked	Rest break	Meal break
Less than 4 hours	No rest break	No meal break
4 hours but less than 5 hours	One 10 minute rest break	No meal break
5 hours but less than 9 hours	One 10 minute rest break	One meal break of at least 30 minutes but not more than 60 minutes
9 hours or more	One or two 10 minute rest breaks, with one taken in the first half of the work hours and the second taken in the second half of the work hours, two rest breaks will be given unless a second meal break is provided	One or two meal breaks of at least 30 minutes but not more than 60 minutes

Rates of pay

[12] Upon review of the rates of pay at clause 3.2 - Wages of the Agreement, there appeared to be a number of classifications, in particular, the crew member and manager classification, where the rates of pay were below the minimum rates of pay under the Award. Further, the Commission noted that while some rates of pay were slightly higher than the minimum rates of pay under the Award, the Agreement does not provide for penalties, as those afforded to employees under the Award on weekends, public holidays and annual leave loading.

[13] The Commission requested the Applicant, in the first instance to provide an undertaking to increase the rates of pay where the rate fell below the minimum rate of pay under the Award and secondly, provide a number of indicative rosters, that include weekend work, and calculations to demonstrate that employees are better off overall under the Agreement, despite not being afforded weekend and public holiday penalties and annual leave loading.

[14] The Applicant has provided an undertaking to increase the rates of pay where the rate fell below the minimum rate of pay under the Award. In addition to these increases, the Applicant has also provided an undertaking to provide a 150% penalty on top of the base rates of pay under the Agreement for all employees working on a public holiday.

[15] The Applicant also provided to the Commission a number of indicative rosters and calculations, taking into account the increased rates of pay and public holiday penalty to demonstrate that employees are better off overall under the Agreement.

[16] Upon review of the calculations it appeared that the calculations by the Applicant were based on a Crew Member under the Agreement being comparable to a Level 1 employee under the Award. This appeared to be contrary to what Ms Mona Sheth-Patel, Director of the Applicant had declared in the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement. Question 3.3 of the Form F17 stated that a Crew Member is comparable to a Level 2 employee under the Award.

[17] Based on calculations undertaken by the Commission, a Crew Member comparable to Level 2 under the Award would not be better off overall. However, if the comparable classification was that based on the Applicant’s calculations, comparable to a Level 1 under the Award, those employees would be better off overall under the Agreement.
[18] The Applicant has clarified that a Crew Member under the Agreement is comparable to Level 1 under the Award (not Level 2 which was a misunderstanding on behalf of the Applicant). The Applicant has filed an amended Form F17 and stated that employees were also advised that their levels currently as they are under the Award would be unaffected by the introduction of the Agreement but that their job titles would change to those classification under the Agreement depending on their current level under the Award.

[19] Upon review of the undertakings and correspondence, I am satisfied that employees are better off overall under the Agreement than under the Award.

[20] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[21] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[22] 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.

[23] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 15 December 2014. The nominal expiry date of the Agreement is 1 July 2018.

[24] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Annexure A

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