Quick Steps School of Dance Pty Ltd

[2019] FWCA 4792

[2019] FWCA 4792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Quick Steps School of Dance Pty Ltd
(AG2019/1087)

QUICK STEPS SCHOOL OF DANCE PTY LTD ENTERPRISE AGREEMENT 2019

Health and welfare services
COMMISSIONER PLATT	ADELAIDE, 9 JULY 2019

Application for approval of the Quick Steps School of Dance Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Quick Steps School of Dance Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Quick Steps School of Dance Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 May 2019.

[3] On 4 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking. On 28 June 2019 I conducted a further Hearing in relation to a number of outstanding issues.

[4] The Applicant has submitted an undertaking in the required form dated 2 July 2019. The undertaking deals with the following topics:

•  Clause 9.3 of the Agreement will be replaced in its entirety with the following:

“Where an employee is rostered on to work, and does work on a Public Holiday, then in addition to the provisions of clause 27.4, that employee shall also receive a Public Holiday Allowance of $30.”

•  Clause 10.5.2 of the Agreement will be amended as follows:

“A casual employee at levels 2 through to 4 will be engaged for a minimum of hour of work or for 1 Class for each shift or be paid accordingly.”

•  Clause 10.5.3 of the Agreement will be amended as follows:

“A casual level 1 or level 5 employee will be engaged for a minimum of 3 hours work or be paid accordingly.”

•  Clause 10.9.2 of the Agreement will be amended as follows:

“Part-time employees shall have a minimum start of 3 hours per day or 4 Classes per day or be paid accordingly. The employer and the employee can agree at any time to increase or decrease the minimum number of hours worked in a week, or agree to change the hours or days on which work is performed. Any such agreement must be recorded in writing.”

•  Clause 10.9.3 of the Agreement will be amended as follows:

“For Dance Teachers, all time worked in excess of the hours as agreed per clause 10.9.1, or later varied under clause 10.9.2 will be overtime and dealt with in accordance with clause 17.”

•  Clause 10.9.5 of the Agreement will be replaced in its entirety with the following:

“For non-Dance Teachers, all time worked in excess of the hours as agreed per clause 10.9.1, or later varied under clause 10.9.2 will be overtime and dealt with in accordance with clause 17.”

•  Clauses 11.24 and 13.2 of the Agreement shall no longer apply.

•  Clause 13.7.3 of the Agreement will be amended as follows:

“Six day a week employees may be rostered to work either 38 or 42 hours per week, or teach 38 or 42 Classes a week, averaged over a 4 week cycle, in lieu of the provision at clause 15.1. Employees will receive written confirmation of the total number of contracted hours.”

•  Clause 13.7.4 of the Agreement will be amended as follows:

“Six day a week employees can perform their duties on any 6 days during the week. The limits on the number of hours worked per day, averaged over a 4 week cycle for this category of employee are set out below. These limits apply in lieu of the limits in clause 16.2.1 and 16.2.2.

(a) Dance Teachers will not be rostered on or required to teach more than 168 Classes in any 4 week period and other employees will not be rostered on to or required to work more than 168 hours in any 4 week period. Any hours outside these limits will be treated as overtime.

(b) In addition, employees will have the following weekly limits for Saturday and Sunday work, with these hours being averaged over a 52 week cycle.

(Note: the weekly limit for 42 contracted hours per week is 6 for Saturday and Sunday, the weekly limit for 38 contracted hours per week is 6 for Saturday and Sunday.)

(c) The same limit averaging, limit conversion and limit reviewing detailed in clauses 16.2.3 to 16.2.8 apply to 6 day employees.”

•  Clause 15.2 of the Agreement will be amended as follows:

“ Ordinary hours of work for full-time employees must be worked between the hours of 0900 – 2300 Monday to Friday and between the hours of 0900 and 2100 Saturday and Sunday.”

•  Clause 16 of the Agreement will be replaced in its entirety with the following:

“16.1 For non-Dance Teacher permanent employees the employer will prepare a roster at least 7 days before the start of the week. A change to the roster within 7 days of the week commencing will done only upon the mutual agreement of both employee and employer. For permanent Dance Teachers, the employer will work with dance teachers to determine work periods, having regard to the number of classes at which members are attending and which times are most suitable for booking in members.

16.2 In addition to the limits to ordinary hours of work contained in clause 15, the following limits apply to non 6 days a week permanent employees.

16.2.1 Dance Teachers will not be rostered on or required to teach more than 152 Classes in any 4 week period and other employees will not be rostered on to or required to work more than 152 hours in any 4 week period. Any hours outside these limits will be treated as overtime.

16.2.2 In addition, employees will have the following weekly limits for Saturday & Sunday work.

(Note: the Applicant has inserted a table containing the weekly limits for Saturday & Sunday work.)

16.2.3 Weekly limits can be reduced to increase Sunday limits at a 1:2 ratio

For example:

An employee on a 38 hour contract can reduce total weekly limit by 1 hour, to increase Sunday limits by 2 hours.

Monday-Friday hours

Saturday: 6 hours (using full existing limit)

Sunday: 8 hours (using full limit + 2 hour converted from Mon-Friday hours)

Total: 37 hours

16.2.4 Saturday and Sunday limits can be exchanged at a 1:2 ratio.

Example:

A 38 hour contract has 6 hour Saturday limit and a 6 hour Sunday limit

a) The full 6 hour Saturday limit can be converted to an additional 3 hours on the Sunday limit. The resulting limits would be a 0 hours Saturday limit, and a 9 hours Sunday limit.

b) 2 hours out of the 6 hour Sunday limit can be converted to add 4 hours to the Saturday limit. The resulting limits would be a 10 hours Saturday limit, and 4 hours Sunday limit.

16.2.5 Limits in 16.2.2 to 16.2.4 are averaged over a 52 week period.

16.2.6 The employer shall review each employee’s pay at every pay cycle to ensure it does not exceed the limits in 16.2.2 to 16.2.5. If the limits are breached these excess hours should be treated as overtime and any required payments made in that pay cycle

16.2.7 Review will be conducted by way of detailed analysis using the form ‘16.2.6 Saturday and Sunday Limit Analysis’ annexed to this agreement or suitable electronic alternative

16.2.8 An employee can request detailed analysis of their Saturday and Sunday limits at any stage.”

•  Clause 17.3 of the Agreement will be replaced in its entirety with the following:

“Where an employee has accrued TOIL at the time of their termination, the employee shall have all such TOIL paid out as part of their termination pay.”

•  Clause 22.2.6 of the Agreement will be amended as follows:

“Any misuse of the paid Personal Leave provisions may be treated as Gross Misconduct and could result in the summary termination of the employee.”

•  Clause 23.1.2 of the Agreement will be amended as follows:

“Following the death of a member of the Employee’s immediate family or household; or”

•  Clause 27.5 of the Agreement will be replaced in its entirety with the following:

“Despite any other provision of this agreement, an employee who works on a Public Holiday shall have a minimum engagement of 4 hours or be paid for 4 hours.”

•  The Applicant has provided a replacement Schedule A.1 – Hourly Rates of Pay table.

•  The Applicant has provided a replacement Schedule A.2 – Class Rates of Pay table.

•  The Applicant inserted a new annexure “16.2.6 Saturday & Sunday Limits Analysis.”

[5] No bargaining representatives were appointed.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 8 July 2023.

COMMISSIONER

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