PFD Food Services Pty Ltd

[2014] FWCA 4884

[2014] FWCA 4884

FAIR WORK COMMISSION

DECISION

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

PFD Food Services Pty Ltd
(AG2014/6033)

PFD FOOD SERVICES PTY LTD (CAIRNS) ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER BULL	PERTH, 21 JULY 2014

Application for approval of the PFD Food Services Pty Ltd (Cairns) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the PFD Food Services Pty Ltd (Cairns) 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.

Correction of error

[2] On 14 July 2014, the Applicant advised the Commission of a typographical error at Appendix B: Allowances of the Agreement. In particular, the Applicant advised that whilst the dollar amounts are correct, that is, reflecting the agreed 3% increase as per sub clause 4.1(c), the Appendix incorrectly reflects a 3.5% increase at the top of the table on page 41, Appendix B: Allowances of the Agreement. The Applicant has stated that this should reflect a 3% increase each year as per sub clause 4.1(c) of the Agreement.

[3] The Commission requested the views and comments of the employee bargaining representative named in the application, Mr Jeremy Bertuch. On 16 July 2014, Mr Bertuch advised the Commission that the allowance increase should be 3% as voted on during the Agreement negotiations.

[4] Pursuant to s.586(a) of the Act, the Commission may allow for a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms it considers appropriate. On the submission made by the Applicant with respect to the typographical error that appears in Appendix B: Allowances of the Agreement and given the employee bargaining representatives comments, the Appendix will be amended by reflecting the agreed 3% increase at the top of the table as per sub clause 4.1(c).

[5] A copy of the amended Appendix B is attached at Annexure A.

[6] On 22 May 2014, the Commission alerted the Applicant and the employee bargaining representative to a number of concerns it had with respect to the Agreement. In particular, the concerns related to those the Applicant had identified in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, as terms that were less beneficial than those in the Clerks - Private Sector Award 2010, Storage Services and Wholesale Award 2010 and the Road Transport and Distribution Award 2010, being the relevant modern awards for the purpose of the better off overall test. The terms that the Applicant had identified as terms that were less beneficial than the relevant modern awards were, rest breaks, meal allowance, spread of hours, penalties and shift allowances.

[7] The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate how employees are better off overall under the Agreement when compared to the relevant modern award.

[8] Correspondence was received from the Applicant on 23 May, 18 June and 14 July 2014.

Undertakings

Level 1 - Storepersons

[9] Upon review of the correspondence, the Commission advised the Applicant that when the Agreement is compared to the Storage Services and Wholesale Award 2010, it fails to meet the better off overall test for employees engaged at a Level 1 classification.

[10] The Applicant has provided an undertaking that it will not employ storepersons or driver/storepersons at a Level 1 classification.

Junior employees

[11] The Commission requested the Applicant to provide an undertaking with respect to the junior rates under the Agreement in relation to juniors who would be engaged as drivers or storepersons as the junior rates of pay under the Agreement would not meet the better off overall test.

[12] The Applicant has provided an undertaking that in lieu of the junior rates in the Agreement at sub clause 3.3, it will pay junior storepersons or junior driver/storepersons the following rates:

● 18 years of age or under - 70% of the adult rate

● 19 years of age and over - the appropriate adult rate.

Level 2 - Storepersons

[13] Upon review of the Applicant’s rosters and calculations and modelling undertaken by the Commission, the Commission advised the Applicant that a Level 2 - Storeperson working a Monday to Friday roster would not be better off overall under the Agreement when compared to the Storage Services and Wholesale Award 2010.

[14] The Applicant has provided an undertaking that in addition to the roster allowance at sub clause 4.2(f) of the Agreement, Level 2 - Storepersons or Driver/Storepersons working in the warehouse on a Monday to Friday shift who commence work between 4:00am and before 7:00am for the week, shall be paid a weekly roster allowance of $15 per week. Further, the Applicant has undertaken that this roster allowance will be increased as per sub clause 4.1(c) each year to $15.45 from the first full pay period on or after 1 September 2014; and $15.91 from the first full pay period on or after 1 September 2015.

Annualised Salaries

[15] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 4.1 - Wages, and in particular, the netter off overall test at sub clause 4.1(d)(vi), that it will conduct a reconciliation for each employee who receives an annualised salary covered by the Agreement on an annual basis, to establish whether the remuneration they received for work performed under the Agreement (in the preceding year) is less than the employee would have received under the relevant modern award.

[16] Further, the Applicant undertakes that where a reconciliation establishes that an employee has been paid less under the Agreement than the employee would have been paid performing the same work under the relevant modern award, the employee will be reimbursed for the difference between the amount paid under the Award and the amount paid under the Agreement.

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

[18] I have sought the views of the bargaining representative, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[19] 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.

[20] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 28 July 2014. The nominal expiry date of the Agreement is 31 October 2016.

COMMISSIONER

Annexure A

Annexure B

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