Saan Food Pty Ltd T/A Mad Mex Fresh Mexican Grill South Melbourne

[2015] FWCA 4914

[2015] FWCA 4914

FAIR WORK COMMISSION

DECISION

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

Saan Food Pty Ltd T/A Mad Mex Fresh Mexican Grill South Melbourne
(AG2015/2688)

SAAN FOOD ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 27 JULY 2015

Application for approval of the Saan Food Enterprise Agreement 2014.

[1] An application has been made for the approval of an enterprise agreement known as the Saan Food 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 Fair Work Commission (the Commission) wrote to the applicant on 16 June 2015, with respect to rates of pay under the Agreement not adequately compensating for reduced entitlements which employees would otherwise receive under the Fast Food Industry Award 2010 (the Award), being the relevant award for the purposes of the better off overall test (BOOT). There are different Minimum Wage Rate Schedules (Options A-F) setting out the different pay rate options at the election of the employer.

[3] At 3.4 of the application (F17) the applicant has stated that the minimum wage rate schedules under the Agreement exceed the minimum rates of pay under the Award, and at 3.6 of the F17 the applicant states that the Agreement does pass the BOOT.

[4] At 3.5 of the F17 there were some terms under the Agreement which the applicant listed as being less beneficial in comparison to the Award, noting that the Agreement modifies penalty rates for work performed on weekends, public holidays and evenings, as well as excluding meal allowances and annual leave loading for all employees.

[5] Whilst the rates of pay are higher under the Agreement, the rates of pay are loaded to incorporate weekend penalties, public holiday work, annual leave loading, and an evening penalty. In this regard, I could not be satisfied employees who perform regular work on weekends and public holidays or regular evening shifts would be adequately compensated in lieu of the loaded rates of pay. Further, the Agreement does not provide for any increases in rates of pay during its 4 year term.

[6] Rosters were requested from the applicant to demonstrate how employees would be better off under the Agreement. The applicant provided rosters to the Commission on 22 June 2015.

[7] Upon analysis of the submitted rosters, it identified that the loaded rates of pay for all permanent employees would still be less overall under all the different pay options contained in the Agreement than the Award. Further, casual employees under each pay option, except those employees paid under Options C and F would also be worse off than the Award. The applicant was advised of these observations on 13 July 2015.

[8] The correspondence also noted other reduced entitlements under the Agreement which were not raised in the F17, being:

1. Overtime rates under the Agreement, although in line with the Award are triggered under more limited circumstances under the Agreement when compared to the Award; and that
2. Full-time salaried employees not being entitled to any penalties or overtime rates.

[9] Having regard to the loaded rates of pay and the above reduced entitlements, the applicant was advised that the rates of pay under the Agreement did not appear to be an adequate compensation for permanent and casual employees.

Undertakings

[10] Where the Commission has a concern that an agreement does not meet the requirements set out in s.186 and s.187 which includes that the agreement does not pass the BOOT, s.190 provides the employer with an opportunity to provide written undertakings acceptable to the Commission aimed at meeting those concerns 1.

[11] Accordingly, on 13 July 2015, the applicant was written to offering an opportunity to address concerns regarding the pay rates of the Agreement. Percentage pay rate increases to the Agreement were proposed.

[12] On 22 July 2015, the applicant provided undertakings with pay rate increases as proposed by the Commission. The pay rate increases apply to all permanent employees and to relevant casual employees under the Minimum Wage Rate Schedule of the Agreement.

[13] The undertakings provided by the applicant address the Commission’s concerns. Taking into account the higher rates of pay under the Agreement and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[14] The undertakings provided by the applicant are taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[15] 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.

[16] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 3 August 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

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

COMMISSIONER

Annexure A

 1   BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and others[2010] FWAFB 2762 at (49).

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