Raintrap Pty Ltd

[2015] FWCA 4573

[2015] FWCA 4573

FAIR WORK COMMISSION

DECISION

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

Raintrap Pty Ltd
(AG2015/1172)

RAINTRAP PTY LTD - ENTERPRISE AGREEMENT 2015

Fast food industry
COMMISSIONER BULL	SYDNEY, 9 JULY 2015

Application for approval of the Raintrap Pty Ltd - Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Raintrap Pty Ltd - Enterprise Agreement 2015 (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 Fair Work Commission (the Commission) wrote to Mr Chris Agnew (the applicant) on 28 May 2015, with respect to the nominal expiry date of the Agreement, and the Agreement satisfying the better off overall test (BOOT).

[3] On 17 June 2015, the Fair Work Commission (the Commission) wrote to Mr Chris Agnew and Mr Peter Christie (the employer) with respect to concerns it had identified within the Agreement. In particular, the concerns related to the Agreement being lodged out of time and the Agreement meeting the better off overall criteria under s.193 of the Act.

[4] Correspondence was received from Mr Agnew on 23 and 30 June, 3 and 8 July 2015 addressing each of the issues identified by the Commission.

Agreement lodged out of time

[5] Section 185(3)(a) of the Act specifies that the application for approval of an agreement must be lodged within 14 days after the ballot for the approval of the proposed agreement was undertaken. The application was lodged on 18 May 2015, and the ballot for approval of the Agreement was undertaken on 29 April 2015, meaning that the application was lodged 3 days out of time.

[6] In Mr Agnew’s correspondence of 23 June 2015, he explained that the late filing of the application was not the fault of the employer, but rather at the fault of their representative, being Mr Agnew not being able to file within the requisite period of time.

[7] In the employer’s statutory declaration (F17), Mr Peter Christie, Director, stated that there would be no prejudice for extending the time for lodgement, given that the employees were already being paid under the proposed Agreement.

[8] Given that the late filing was not the direct fault of the employer, I am satisfied that it is fair to extend time for lodgement until 18 May 2015.

Better Off Overall Test (BOOT)

[9] There are a number of entitlements which are less beneficial when compared to the Fast Food Industry Award 2010 (the Award), being the relevant award for the purposes of the BOOT. The less beneficial terms were declared in the employer’s F17 and initially addressed in the applicant’s correspondence of 23 June 2015, where Mr Agnew provided a number of indicative rosters and submissions on the employer’s operating hours. It was submitted that all staff, based on the indicative rosters and calculations provided were either being paid more than the Award or no less than.

[10] However, I was not satisfied that the correspondence and submitted rosters comprehensively addressed issues identified with the BOOT. In particular, my concerns were that:

1. Rates of pay were not high enough to adequately compensate for the removal of weekend and public holiday loadings; and
2. Rates of pay for junior apprentices being below the Award.

[11] On 30 June 2015, Mr Agnew provided undertakings that increased the rates of pay for employees under the restaurant/cafe stream by 2.87%, removed the introductory rates of pay in the fast food stream, and removed the apprentice clause from the Agreement.

[12] Upon further review, I determined that residual BOOT concerns remained with the Agreement. The removal of the introductory rates of pay in the fast food stream did not affect any change to the rates of pay for the other classifications other than the introductory level. On this analysis, I determined that junior permanent fast food employees could still be worse off under the Agreement if they were to work regular weekend hours.

[13] On 2 July 2015, I again corresponded to the applicant noting my concerns and pursuant to s.190 of the Act, the applicant was afforded an opportunity to submit further undertakings to satisfy the BOOT.

[14] Further undertakings were provided from the applicant on 3 and 7 July 2015 which amended the original undertaking to include a Sunday and public holiday rate of pay for employees engaged in the fast food stream.

[15] In light of the undertakings provided, I am satisfied that the Agreement results in employees being better off under the Agreement.

[16] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[17] 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.

[18] 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.

[19] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 16 July 2015. The nominal expiry date of the Agreement is 1 January 2019.

[20] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

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