Rolld Australia Pty Ltd T/A Rolld

[2015] FWCA 830

[2015] FWCA 830

FAIR WORK COMMISSION

DECISION

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

Rolld Australia Pty Ltd T/A Rolld
(AG2014/8372)

ROLLD ENTERPRISE AGREEMENT 2014.

Fast food industry
COMMISSIONER BULL	SYDNEY, 11 FEBRUARY 2015

Application for approval of the Rolld Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the

Rolld 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] The Commission wrote to the Applicant via its legal representative on 10 and 18 December 2014, and 13 January 2015 with respect to concerns it had with the Agreement. In particular, the concerns related to penalties, dispute resolution term, and the s.181(2), 21 day requirement between the date on which the last s.173 notice being given and the date an employer requests employees to approve a proposed enterprise agreement .

[3] Correspondence was received from the applicant on 15 and 23 December 2014, 30 January 2015, and 9 February 2015.

21 Day Requirement

[4] The Commission noted from the applicant’s F17 (at Q.2.8), that the time between the last s.173 notice of employee’s representational rights (NERR) and the date of voting to approve the Agreement was less than the requisite 21 days, being 7 November 2014 and 17 November 2014 respectively. In its correspondence to the applicant, the Commission advised that it cannot approve an agreement where the 21 day requirement has not been met.

[5] The applicant submitted that the dates submitted in its’ F17 application were incorrect and submitted an amended signed and witnessed F17. The amended F17 provided corrected dates; these being 23 October 2014 on which the last NERR was given to an employee who will be covered by the Agreement and 19 November 2014 being the date the Agreement was made.

Undertakings

Dispute Resolution term

[6] With respect to cl.25 - Dispute Procedures, the Agreement did not provide for the resolution of disputes with respect to the NES or allow for the representation of employees throughout the dispute resolution process as required under s.186(6) of the Act.

[7] The applicant has provided an undertaking with respect to cl.25 that the dispute settlement procedure in clause 25 will apply to any disputes that arise in relation to the National Employment Standards; and allows for representation of employees covered by the Agreement for the purposes of that procedure.

Weekend work

[8] With respect to clause 6- Weekly employee rates of pay, the Commission noted that

shift and weekend penalty rates as well as public holiday penalty rates under the Agreement appeared to be less than under the Fast Food Industry Award 2010(the Award), being the relevant award for the purposes of the better off overall test. The Commission requested correspondence to demonstrate how employees were better off overall with the lesser penalty rates provided under the Agreement.

[14] The applicant submits that employees are afforded a higher hourly rate of pay which

compensates for the lesser penalty rates under the Agreement. The applicant has provided a

number of calculations and indicative rosters to demonstrate this.

[9] The applicant, at the request of the Commission has also provided an undertaking which states that employees who work at 7 day stores will not be required to work more than 4 weekend days per month.

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

[11] 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.

[12] 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.

[13] The Agreement is approved. In accordance with section 54(1), the Agreement will

operate from 18 February 2015. The nominal expiry date of the Agreement is 1 October 2018.

[14] This decision should be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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