Shaydi Pty Ltd

[2010] FWA 4262

[2010] FWA 4262

FAIR WORK AUSTRALIA

DECISION

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

Shaydi Pty Ltd
(AG2009/20496)
Nambourne Holdings Pty Ltd T/A Bakers Delight Chadstone
(AG2009/20526)

Bojangles (QLD) Pty Ltd ATF Bojangles QLD Trust
(AG2009/20493)

2 Sadfish Pty Ltd ATF The Pembroke Walsh Family Trust T/A Gloria Jean's Rouse Hill
(AG2009/20337)

M.J. & R.A. Clarke Pty Ltd T/A Bakers Delight Strath village
(AG2009/20544)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 8 JUNE 2010

Application for approval of single-enterprise agreements – agreement on lesser ordinary hour payments in place of penalty rates – incorrect statements in employer statutory declaration to the advantage of the applicant employer and application - undertakings

[1] On 18, 22 and 23 December 2009, shortly before the bridging period ceased, a group of agreements were lodged with Fair Work Australia seeking approval under s.185 of the Fair Work Act 2009 (‘the Act’). The applicants to these agreements had common representatives, some common features, and were heard together by consent.

[2] The matters were heard on 24 March 2010. During those proceedings I raised a number of questions regarding the agreements, and written responses were received.

[3] A considerable amount of the discussion in proceedings before me related to clauses 7.3 and 7.4 of the agreements. These clauses enabled the working of hours of work on ordinary time rates instead of the penalty rates that the relevant reference instrument required. I asked on at least nine occasions what was to prevent the employer rostering employees so that large amounts of penalty rates were not paid to employees 1. The response was variously that the agreement loaded a rate and average penalties were reflected in that rate, that employees would have an expectation of fair rostering and would have discussions with the employer if rostering was not fair, that the rosters clause prevented this, that consistent rosters were easier for the employer, that the employers did not intend this, that there was no legal requirement that the question be answered, that the clauses would only be used where the employee wished to work additional hours such as a student, and other responses. None of these responses were fully convincing. The rostering clause provided that (clause 8.2):

‘The Employer will ordinarily roster Employees in a manner that is both fair and equitable to ensure that, where applicable, the allocation of weekend and public holiday hours are equally divided between Employees on a rotating basis.’

[4] The clause contained various qualifications on the requirement of fair and equitable rostering, and were not a full protection, even if the clause was properly implemented.

[5] In any event these arguments ceased following the Full Bench decision in BUPA Care Services v. P&A Securities 2. I asked for undertakings that these clauses not be applied, and the employers provided undertakings that clauses 7.3 and 7.4 would be void and of no effect.

[6] However, there remain a number of serious issues regarding the application of the ‘no disadvantage’ test.

[7] In each case the employer was asked to provide rosters for the month in which the application was made. In each case those rosters were analysed to see if they were consistent with the claimed patterns of hours worked by employees provided by the employer in its application.

[8] In summary, an analysis of the agreements revealed the following:

1. Each agreement provides a higher rate of pay in lieu of penalty rates for evenings, mornings, weekends and public holidays. Working pattern calculations provided at lodgment suggest a specific number of ordinary hours worked, and a specific number of hours which would have required the payment of penalty rates.

2. The agreements provide that permanent employees can receive payment for annual and personal leave in advance of accessing the leave via a higher hourly rate 3.

3. The employers provided specific information on the rostering arrangements for six employers as requested by me. The additional information supplied in part was incomplete, illegible or unclear (i.e. no finishing time provided for some shifts).

4. A comparative analysis of the rosters provided against the claimed working hours calculations attached to the applications shows that there are a number of differences. The original comparative tables supported a view that each of the agreements on average satisfied the no disadvantage test. However, the rosters provided do not consistently show that this is the case, and show that in some cases employees are or may be disadvantaged on average across the comparison period.

[9] The methodology used in providing the analysis of rosters, and comparisons with the calculations accompanying the application, was as follows.

The applicants have provided weekly rosters for employees working under the proposed agreements. These have been analysed in comparison to what employees would earn if working under the reference instruments named by the employers. The rosters that have afforded closer attention herein are those that span hours less favourable to the employee than the indicative work patterns provided at time of lodgement. Information has been provided as to the classification levels for some rosters and where possible rosters have been compared to the relevant level with the information provided. Where the employer has provided more than four weekly rosters, only a four week cycle has been considered and where the employer has provided less than four weeks of rosters, the information provided has been considered.

[10] Classifications not addressed in the modelling provided at time of lodgement have not formed part of the hours calculated herein.

[11] The weekly proportion of hours has been obtained by adding the total of ‘ordinary’ and ‘penalty’ hours (defined by the relevant instrument) in the roster cycle. The resulting hours have been displayed as a proportion of a 38 hour week for comparison to the working pattern calculations provided at lodgement. Unpaid breaks have not been assumed or calculated unless where defined by the roster.

[12] Table A in each Schedule represents the classifications and pay rates compared to the award. Table B in each Schedule represents working patterns against award penalties that the applicant provided at lodgement that do not lead to a reduction. Table C in each of the Schedules represents averaged hours as calculated from the rosters (converted to a 38 hour week) and applicable award penalties.

[13] Each weekly roster table provides the agreement provisions on the left and award provisions on the right.

Matter no. AG2009/20496 Shaydi Pty Ltd

[14] The average of all rostered hours indicates a higher proportion of penalty hours worked than suggested at lodgement (See Tables B and C below). The net disadvantage or benefit of the agreement compared to the award reference instrument is set out in Table A.

Table B	Table C
Permanent Employee work pattern as supplied with lodgement.	Hours	INDICATIVE HOURS FOR AUGUST 2009 (PROPORTIONATELY AVERAGED TO A 38 HOUR WEEK BASED ON ROSTERS)	Hours
Ordinary rate Mon - Fri 7am -6pm	32.9	Ordinary rate Mon - Fri 7am -6pm	29.02
Saturday	1.88	Saturday	2.46
Sunday	1.38	Sunday	2.86
Mon - Fri 6pm -10pm	1.84	Mon - Fri 6pm -10pm	3.66
Total hrs	38	Total hrs	38

[15] The loaded rate of pay may not compensate for annual leave, annual leave loading and personal leave entitlements (see table titled ‘Averaged rosters applied to the Permanent Loaded Level 1 (21 years and over) classification’)

[16] Trainees working hours above the models provided at lodgement may be disadvantaged in comparison to the award (see table titled ‘Averaged rosters applied to the Loaded Trainee hourly rate classification’)

[17] The employer has provided additional information for the rosters that indicate no casuals come under the rosters provided.

[18] The shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000 (AP796250) is the reference instrument for the purposes of application of the ‘no disadvantage test’, by virtue of items 4-6 of Part 2 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (‘The Transitional Act’).

[19] To remain consistent with the calculations supplied by the employer at time of lodgement and provide comprehensive further analysis the least favourable rosters and averaged rosters have been compared to the award for the following agreement classifications:

Table A

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Permanent Loaded Level (21 years and over)	$19.68	Retail Worker Grade 1	$15.86	24.09%
Permanent Unloaded Level (21 years and over)	$17.85	Retail Worker Grade 1	$15.86	12.55%
Loaded Trainee hourly rate	$16.40	Trainee Level	$13.18	24.43%
Unloaded Trainee hourly rate	$14.88	Trainee Level	$13.18	12.90%

[20] The roster information indicates that the proportion of actual hours worked by employees across penalty hours under this agreement in some instances are greater than those provided by the work pattern models at time of lodgement. The relevance of these rosters to all classifications of the award is however unclear, hence the following working arrangements are for the most part indicative.

Table B	Table C
Permanent Employee	Hours	Loading	Indicative hours for August 2009 (proportionately averaged to a 38 hour week based on rosters)	Hours	Award Loading
Ordinary rate Mon - Fri 7am -6pm	32.9	100%	Ordinary rate Mon - Fri 7am -6pm	29.02	100%
Saturday	1.88	125%	Saturday	2.46	125%
Sunday	1.38	200%	Sunday	2.86	200%
Mon - Fri 6pm -10pm	1.84	125%	Mon - Fri 6pm -10pm	3.66	125%
Total hrs	38	Total hrs	38

[21] A roster was not filled for the employee ‘Roat’ only a start time. Therefore roster information with respect to that employee could not be calculated.

[22] The averaged, rostered hours for each classification level provided both at lodgement and in the rosters are displayed below:

Averaged rosters applied to the Permanent Loaded Level 1 (21 years and over) classification
Agreement Ordinary Rate	$19.68	Permanent Loaded Level (21 years and over)		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$747.84	Ordinary rate Mon - Fri 7am -6pm	29.02	100%	$460.26
Saturday	2.46	125%	$48.77
Sunday	2.86	200%	$90.72
Mon - Fri 6pm -10pm	3.66	125%	$72.56
Annual leave	4 Weeks per annum	$50.22
Annual leave loading	4 Weeks per annum	$8.79
Personal Leave	10 Days per annum	$24.11
Total			$747.84	Total	$755.43
Award Total Weekly Rate		$755.43
Agreement Total Weekly Rate			$747.84
Percentage Difference			-1.00%

Averaged rosters applied to the Permanent Unloaded Level 1 (21 years and over) classification
Agreement Ordinary Rate	$17.85	Permanent Unloaded Level (21 years and over)		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$678.30	Ordinary rate Mon - Fri 7am -6pm	29.02	100%	$460.26
Saturday	2.46	125%	$48.77
Sunday	2.86	200%	$90.72
Mon - Fri 6pm -10pm	3.66	125%	$72.56
Total			$678.30	Total	$672.31
Award Total Weekly Rate		$672.31
Agreement Total Weekly Rate			$678.30
Percentage Difference			0.89%

Averaged rosters applied to the Loaded Trainee hourly rate classification
Agreement Ordinary Rate	$16.40	Loaded Trainee hourly rate		Award Ordinary Rate	$13.18	Trainee hourly rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$623.20	Ordinary rate Mon - Fri 7am -6pm	29.02	100%	$382.48
Saturday	2.46	125%	$40.53
Sunday	2.86	200%	$75.39
Mon - Fri 6pm -10pm	3.66	125%	$60.30
Annual leave	4 Weeks per annum	$41.74
Annual leave loading	4 Weeks per annum	$7.30
Personal Leave	10 Days per annum	$20.03
Total			$623.20	Total	$627.77
Award Total Weekly Rate			$627.77
Agreement Total Weekly Rate			$623.20
Percentage Difference			-0.73%

Averaged rosters applied to the Unloaded Trainee hourly rate classification

Agreement Ordinary Rate	$14.88	Unloaded Trainee hourly rate		Award Ordinary Rate	$13.18	Trainee hourly rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$565.44	Ordinary rate Mon - Fri 7am -6pm	29.02	100%	$382.48
Saturday	2.46	125%	$40.53
Sunday	2.86	200%	$75.39
Mon - Fri 6pm -10pm	3.66	125%	$60.30
Total			$565.44	Total	$558.70
Award Total Weekly Rate		$558.70
Agreement Total Weekly Rate			$565.44
Percentage Difference			1.21%

[23] There is a discrepancy between the rosters provided to me, and the claims made by the employer when the agreement was filed. The employer submitted:

‘All relevant penalties and allowances required to be accounted for in the creation of an Enterprise Agreement under the No-Disadvantage test were compensated for in rate calculations for this Enterprise Agreement. All hours that fall under such parameters have been factored (or ‘loaded’) into hourly rate calculations made regarding this Enterprise Agreement.’

[24] This is not correct, for example with respect to the permanent loaded level classification. The calculations provided in Annexure A to the application to support this claim similarly do not seem to be correct. In fact rather than all hours having been factored into a loaded rate, only some hours are factored into the loaded rate. The statutory declaration provided by the employer is incorrect in that respect, and the false statement is to the advantage of the applicant employer. It is most unfortunate that I am not able to rely on the sworn statutory declaration of the employer. I also note that the rosters are not complete, providing further uncertainty.

[25] Consistent with the Full Bench decision in BUPA Care Services v. P&A Securities 4, I am prepared to provide the employer with a further opportunity to provide me with an undertaking that meets my concerns under s.190 of the Act. The undertaking should, for example, take the form of a reconciliation between the amount earnt under the agreement, with the amount that would have been earned under the reference instrument. A draft undertaking is contained in Attachment A. This undertaking, or any other relevant submission or material, should be provided within seven (7) days. If the undertaking is not provided I may dismiss the application.

Matter no. AG2009/20526 Nambourne Holdings Pty Ltd

[26] The employer provided me with rosters, but some rosters did not contain finish times and could not be included in the averaging. It is unclear though it seems likely that the incomplete rosters that could not be calculated pertain to the Bread Trade Award employees. Based on the hours worked it appears that the complete rosters are for retail workers.

[27] The average of all rostered hours for retail workers indicates a higher proportion of penalty hours worked than suggested at lodgement (See Table below):

Table B	Table C
Shops Employees Permanent Employee work pattern as supplied with lodgement.	Hours	Indicative hours for October 2009 (proportionately averaged to a 38 hour week based on rosters)	Hours
Ordinary rate Mon - Fri 7am -6pm	28.01	Ordinary rate Mon - Fri 7am -6pm	24.55
Saturday	4.27	Saturday	6.58
Sunday	4.44	Sunday	5.74
Mon - Fri 6pm -10pm	1.28	Mon - Fri 6pm -10pm	1.13
Total hrs	38	Total hrs	38

[28] Depending on the roster, the loaded rate of pay may not compensate for annual leave, annual leave loading and personal leave entitlements (see tables titled ‘Averaged rosters applied to the Loaded Level 1 Permanent Mon – Sun Rate’ & Averaged rosters applied to the Loaded Trainee Rate).

[29] The following awards are the reference instruments for the purposes of application of the ‘no disadvantage test’, by virtue of items 4-6 of Part 2 of Schedule 7 of The Transitional Act:

• AP796250 Shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000 &



• AP769688 Bread Trade (Victoria) Award 1999

[30] The rosters for this employer appear incomplete with many shifts not providing an end time. The roster states the store closing time, though this may not indicate the employee’s actual hours (as a finish time is not rostered). The rosters that could be calculated have been proportioned to a 38 hour week below. These rosters appear consistent with those of a Retail Worker and have been considered in comparison to the Shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000. It is unclear though it seems likely that the incomplete rosters that could not be calculated pertain to the Bread Trade Award.

[31] To remain consistent with the calculations supplied by the employer at time of lodgement and provide comprehensive further analysis all legible rosters have been averaged and compared to the AP796250 Shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000 for the following agreement classifications:

Table A

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Loaded Level 1 Permanent Weekday Rate	$18.66	Retail Worker Grade 1	$15.86	17.65%
Unloaded Level 1 Permanent Weekday Rate	$16.84	Retail Worker Grade 1	$15.86	6.18%
Unloaded Level 1 Permanent Mon – Sun Rate	$19.14	Retail Worker Grade 1	$15.86	20.68%
Loaded Level 1 Permanent Mon – Sun Rate	$20.96	Retail Worker Grade 1	$15.86	32.16%
Unloaded Trainee Rate	$15.95	Trainee Level	$13.18	21.02%
Loaded Trainee Rate	$17.47	Trainee Level	$13.18	32.55%

Table B	Table C
Shops Employees	Hours	Loading	Indicative hours for October 2009 (proportionately averaged to a 38 hour week based on rosters)	Hours	Award Loading
Ordinary rate Mon - Fri 7am -6pm	28.01	100%	Ordinary rate Mon - Fri 7am -6pm	24.55	100%
Saturday	4.27	125%	Saturday	6.58	125%
Sunday	4.44	200%	Sunday	5.74	200%
Mon - Fri 6pm -10pm	1.28	125%	Mon - Fri 6pm -10pm	1.13	125%
Total hrs	38	Total hrs	38

[32] The averaged, rostered hours for each classification level are displayed below. Please note that the classifications are exemplary as information has not been provided as to the rostered employees’ actual classification:

Averaged rosters applied to the Loaded Level 1 Permanent Weekday Rate

Agreement Ordinary Rate	$18.66	Loaded Level 1 Permanent Weekday Rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$709.08	Ordinary rate Mon - Fri 7am -6pm	36.87	100%	$584.76
Mon - Fri 6pm -10pm	1.13	125%	$22.40
Annual leave	4 Weeks per annum	$50.22
Annual leave loading	4 Weeks per annum	$8.79
Personal Leave	10 Days per annum	$24.11
Total			$709.08	Total	$690.28
Award Total Weekly Rate			$690.28
Agreement Total Weekly Rate			$709.08
Percentage Difference			2.72%

Averaged rosters applied to the Unloaded Level 1 Permanent Weekday Rate

Agreement Ordinary Rate	$16.84	Unloaded Level 1 Permanent Weekday Rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$639.92	Ordinary rate Mon - Fri 7am -6pm	36.87	100%	$584.76
Mon - Fri 6pm -10pm	1.13	125%	$22.40
Total			$639.92	Total	$607.16
Award Total Weekly Rate			$607.16
Agreement Total Weekly Rate			$639.92
Percentage Difference			5.40%

Averaged rosters applied to the Unloaded Level 1 Permanent Mon – Sun Rate

Agreement Ordinary Rate	$19.14	Unloaded Level 1 Permanent Mon – Sun Rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$727.32	Ordinary rate Mon - Fri 7am -6pm	24.55	100%	$389.36
Saturday	6.58	125%	$130.45
Sunday	5.74	200%	$182.07
Mon - Fri 6pm -10pm	1.13	125%	$22.40
Total			$727.32	Total	$724.29
Award Total Weekly Rate		$724.29
Agreement Total Weekly Rate			$727.32
Percentage Difference			0.42%

Averaged rosters applied to the Loaded Level 1 Permanent Mon – Sun Rate

Agreement Ordinary Rate	$20.96	Loaded Level 1 Permanent Mon – Sun Rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$796.48	Ordinary rate Mon - Fri 7am -6pm	24.55	100%	$389.36
Saturday	6.58	125%	$130.45
Sunday	5.74	200%	$182.07
Mon - Fri 6pm -10pm	1.13	125%	$22.40
Annual leave	4 Weeks per annum	$50.22
Annual leave loading	4 Weeks per annum	$8.79
Personal Leave	10 Days per annum	$24.11
Total			$796.48	Total	$807.41
Award Total Weekly Rate		$807.41
Agreement Total Weekly Rate			$796.48
Percentage Difference			-1.35%

Averaged rosters applied to the Unloaded Trainee Rate

Agreement Ordinary Rate	$15.95	Unloaded Trainee Rate		Award Ordinary Rate	$13.18	Trainee
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$606.10	Ordinary rate Mon - Fri 7am -6pm	24.55	100%	$323.57
Saturday	6.58	125%	$108.41
Sunday	5.74	200%	$151.31
Mon - Fri 6pm -10pm	1.13	125%	$18.62
Total			$606.10	Total	$601.90
Award Total Weekly Rate		$601.90
Agreement Total Weekly Rate			$606.10
Percentage Difference			0.70%

Averaged rosters applied to the Loaded Trainee Rate

Agreement Ordinary Rate	$17.47	Loaded Trainee Rate		Award Ordinary Rate	$13.18	Trainee
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$663.86	Ordinary rate Mon - Fri 7am -6pm	24.55	100%	$323.57
Saturday	6.58	125%	$108.41
Sunday	5.74	200%	$151.31
Mon - Fri 6pm -10pm	1.13	125%	$18.62
Annual leave	4 Weeks per annum	$41.74
Annual leave loading	4 Weeks per annum	$7.30
Personal Leave	10 Days per annum	$20.03
Total			$663.86	Total	$670.97
Award Total Weekly Rate		$670.97
Agreement Total Weekly Rate			$663.86
Percentage Difference			-1.06%

[33] Given the many gaps in the rosters, and the deficiencies when a comparison of the agreement rates is made with the award rates, I am not satisfied that the requirements of the ‘no disadvantage’ test under items 4-6 of Part 2 of Schedule 7 of The Transitional Act are met. Pursuant to s.190 I invite the employer to provide an undertaking which meets my concerns. A draft undertaking is set out in Attachment A. This undertaking, or any other relevant submission or material, should be provided within seven (7) days. If the undertaking is not provided I may dismiss the application.

[34] Again, it is of concern to me that the statutory declaration provided by the employer contains the same false statement quoted above, and the false statement is to the advantage of the applicant employer.

Matter no. AG2009/20493 Bojangles (QLD) Pty Ltd

ATF Bojangles QLD Trust

[35] The rosters supplied by the applicant were in part illegible; consequently rosters have been averaged using only the rosters that could be read and as a result may not be entirely indicative of actual working patterns. The resulting averages are considerably higher than the model claimed by the employer at the time of lodgment.

Table B	Table C
Working patterns provided at lodgement	Hours	Indicative hours for October 2009 (proportionately averaged to a 38 hour week based on rosters)	Hours
Mon - Fri before 6pm	27.22	Mon - Fri before 6pm	15.09
Saturday	2.73	Saturday	6.39
Sunday	2.64	Sunday	5.05
Mon - Fri after 6pm	5.41	Mon - Fri after 6pm	11.47
Total hrs	38	Total hrs	38

[36] Additional information indicates that the rosters provided do not actually cover the same classifications to those which modelling was provided for at lodgement.

[37] Compared to the hours indicated at lodgement the rosters indicate potential disadvantage for each of the classifications compared in Schedule 3 other than Casual Introductory employees (see table titled ‘Averaged rosters applied to the Casual Introductory 20 years and over hourly rate’).

[38] The following awards are the reference instruments for the purposes of application of the ‘no disadvantage test’, by virtue of items 4-6 of Part 2 of Schedule 7 of The Transitional Act:

• AN140258 Retail Take Away Food Award- South Eastern Division 2003 &



• AP806313 National Fast Food Retail Award 2000

[39] The rosters provided by the employer are in part illegible; those that could be read and calculated have been averaged and proportioned to a 38 hour week below. The resulting averages are considerably higher than the model provided at time of lodgment and may not be entirely indicative of actual working patterns. Comparisons below cover the following classifications:

Table A

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Permanent Unloaded Introductory 20 Years and over hourly rate	$16.21	Introductory Level (AN140258)	$14.31	13.28%
Permanent Loaded Introductory 20 Years and over hourly rate	$17.78	Introductory Level (AN140258)	$14.31	24.25%
Casual Introductory 20 years and over hourly rate	$20.41	Casual Introductory Level (AN140258) 23%	$17.60	15.97%
Unloaded trainee hourly rate	$14.94	Trainee	$13.18	13.35%
Loaded trainee hourly rate	$16.39	Trainee	$13.18	24.36%

Table B	Table C
Working patterns provided at lodgement compared to both reference instruments	Hours	Loading	Indicative hours for October 2009 (proportionately averaged to a 38 hour week based on rosters)	Hours	Loading
Mon - Fri before 6pm	27.22	100%	Mon - Fri before 6pm	15.09	100%
Saturday	2.73	125%	Saturday	6.39	125%
Sunday	2.64	175%	Sunday	5.05	175%
Mon - Fri after 6pm	5.41	110%	Mon - Fri after 6pm	11.47	110%
Total hrs	38	Total hrs	38

[40] The averaged, rostered hours for each classification level addressed in the modelling provided at lodgement are displayed below. Please note that the classifications are exemplary as information has not been provided as to the rostered employees’ actual classification:

Averaged rosters applied to the Permanent Unloaded Introductory 20 Years and Over hourly rate

Agreement Ordinary Rate	$16.21	Permanent Unloaded Introductory 20 Years and over hourly rate		Award Ordinary Rate	$14.31	Introductory Level (AN140258)
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$615.98	Ordinary rate Mon - Fri 7am -6pm	15.09	100%	$215.94
Saturday	6.39	125%	$114.30
Sunday	5.05	175%	$126.46
Mon - Fri 6pm -10pm	11.47	110%	$180.55
Total			$615.98	Total	$637.25
Award Total Weekly Rate		$637.25
Agreement Total Weekly Rate			$615.98
Percentage Difference			-3.34%

Averaged rosters applied to the Permanent Loaded Introductory 20 Years and over hourly rate

Agreement Ordinary Rate	$17.78	Permanent Loaded Introductory 20 Years and over hourly rate		Award Ordinary Rate	$14.31	Introductory Level (AN140258)
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$675.64	Ordinary rate Mon - Fri 7am -6pm	15.09	100%	$215.94
Saturday	6.39	125%	$114.30
Sunday	5.05	175%	$126.46
Mon - Fri 6pm -10pm	11.47	110%	$180.55
Annual leave	4 Weeks per annum	$45.32
Annual leave loading	4 Weeks per annum	$7.93
Personal Leave	10 Days per annum	$21.75
Total			$675.64	Total	$712.25
Award Total Weekly Rate		$712.25
Agreement Total Weekly Rate			$675.64
Percentage Difference			-5.14%

Averaged rosters applied to the Casual Introductory 20 years and over hourly rate

Agreement Ordinary Rate	$20.41	Casual Introductory 20 years and over hourly rate		Award Ordinary Rate	$14.31	Introductory Level (AN140258) Casual
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$775.58	Ordinary rate Mon - Fri 7am -6pm	15.09	123%	$265.60
Saturday	6.39	150%	$137.16
Sunday	5.05	175%	$126.46
Mon - Fri 6pm -10pm	11.47	135%	$221.58
Total			$775.58	Total	$750.81
Award Total Weekly Rate		$750.81
Agreement Total Weekly Rate			$775.58
Percentage Difference			3.30%

Averaged rosters applied to the unloaded trainee hourly rate

Agreement Ordinary Rate	$14.94	Unloaded trainee hourly rate		Award Ordinary Rate	$13.18	Trainee
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$567.72	Ordinary rate Mon - Fri 7am -6pm	15.09	100%	$198.89
Saturday	6.39	125%	$105.28
Sunday	5.05	175%	$116.48
Mon - Fri 6pm -10pm	11.47	110%	$166.29
Total			$567.72	Total	$586.93
Award Total Weekly Rate		$586.93
Agreement Total Weekly Rate			$567.72
Percentage Difference			-3.27%

Averaged rosters applied to the loaded trainee hourly rate

Agreement Ordinary Rate	$16.39	Loaded trainee hourly rate		Award Ordinary Rate	$13.18	Trainee
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$622.82	Ordinary rate Mon - Fri 7am -6pm	24.55	100%	$323.57
Saturday	6.58	125%	$108.41
Sunday	5.74	175%	$132.39
Mon - Fri 6pm -10pm	1.13	110%	$16.38
Annual leave	4 Weeks per annum	$41.74
Annual leave loading	4 Weeks per annum	$7.30
Personal Leave	10 Days per annum	$20.03
Total			$622.82	Total	$649.82
Award Total Weekly Rate		$649.82
Agreement Total Weekly Rate			$622.82
Percentage Difference			-4.16%

[41] Additional information as to the employees’ classification indicates that the rosters do not cover the same classifications to those which modelling was provided at lodgement. Modelling was provided for the loaded trainee hourly rate, Unloaded trainee hourly rate, Casual Introductory 20 years and over hourly rate, Permanent Loaded Introductory 20 Years and over hourly rate and Permanent Unloaded Introductory 20 Years and over hourly rate. The rosters provided cover Store Manager, Counter Hand, Chef and 2IC.

[42] I am not satisfied that the requirements of the ‘no disadvantage’ test under items 4-6 of Part 2 of Schedule 7 of The Transitional Act are met. I note that a copy of the roster later provided by the employer was more legible. The analysis above does not, due to time constraints, deal with the later version. I will if requested by the employer undertake an analysis again of the new more legible rosters.

[43] If no such request is received I will provide the employer with an opportunity to provide an undertaking which meets my concerns. A draft undertaking is set out in Attachment A. This undertaking, or any other relevant submission or material, should be provided within seven (7) days. In this case some of the deficiencies are so great that I may not be able to accept any undertaking under s.190. If a satisfactory undertaking is not provided I may dismiss the application.

[44] Again, I am concerned that the statutory declaration provided by the employer contains the same false statement quoted above, and the false statement is to the advantage of the applicant employer.

Matter no. AG2009/20337 2 Sadfish Pty Ltd

ATF The Pembroke Walsh Family Trust

[45] The average of all rostered hours indicates a higher proportion of penalty hours are worked than suggested at lodgement (See Table below):

Table B	Table C
Working patterns provided at lodgement for permanent level 1	Hours	Indicative hours for November 2009 (all employees proportionately averaged to a 38 hour week based on rosters)	Hours
Mon - Fri	30.33	Mon - Fri	23.18
Saturday	3.78	Saturday	8.13
Sunday	3.89	Sunday	6.69
0	0
Total hrs	38	Total hrs	38

[46] The loaded rate of pay may not compensate for annual leave, annual leave loading and personal leave entitlements (see table titled ‘Averaged rosters applied to the Permanent Loaded Level 1 (21 years and over)’)

[47] The hours compared indicate that employees working a higher proportion of weekend hours may be disadvantaged under the agreement (see table titled ‘Averaged rosters applied to the Permanent Unloaded Level 1 (21 years and over)’ see also table ‘Rachel’s roster for November 2009’).

[48] The Shop Employees (State) Award AN120499 is the reference instrument for the purposes of application of the ‘no disadvantage test’, by virtue of items 4-6 of Part 2 of Schedule 7 of The Transitional Act.

[49] The bargaining agent has provided detail as to the classifications of employees under the rosters. This information states that all employees are permanent part time as either a Level 2 supervisor or Level 1 Shop assistant. This information confirms that the rosters provided do not relate to trainees or casuals, hence these have not been represented in the calculations below. To remain consistent with the calculations supplied by the employer at time of lodgement and provide comprehensive further analysis the Level 1 classification has been compared to the award for the following agreement classifications:

Table A

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Permanent Loaded Level 1 (21 years and over)	$19.78	Shop assistant	$15.84	24.87%
Permanent Unloaded Level 1 (21 years and over)	$17.95	Shop assistant	$15.84	13.32%

Table B	Table C
Working patterns provided at lodgement for permanent level 1	Hours	Loading	Indicative hours for November 2009 (all employees proportionately averaged to a 38 hour week based on rosters)	Hours		Loading
Mon - Fri	30.33	100%	Mon - Fri	23.18		100%
Saturday	3.78	125%	Saturday	8.13		125%
Sunday	3.89	150%	Sunday	6.69		150%
0	100%	0		100%
Total hrs	38	Total hrs	38

Averaged rosters applied to the Permanent Loaded Level 1 (21 years and over)

Agreement Ordinary Rate	$19.78	Permanent Loaded Level 1 (21 years and over)		Award Ordinary Rate	$15.84	Shop assistant
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$751.64	Mon - Fri	23.18	100%	$367.17
Saturday	8.13	125%	$160.97
Sunday	6.69	150%	$158.95
Annual leave	4 Weeks per annum	$50.16
Annual leave loading	4 Weeks per annum	$8.78
Personal Leave	10 Days per annum	$24.08
Total			$751.64	Total	$770.11
Award Total Weekly Rate		$770.11
Agreement Total Weekly Rate			$751.64
Percentage Difference			-2.40%

Averaged rosters applied to the Permanent Unloaded Level 1 (21 years and over)

Agreement Ordinary Rate	$17.95	Permanent Unloaded Level 1 (21 years and over)		Award Ordinary Rate	$15.84	Shop assistant
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$682.10	Mon - Fri	23.18	100%	$367.17
Saturday	8.13	125%	$160.97
Sunday	6.69	150%	$158.95
Total			$682.10	Total	$687.10
Award Total Weekly Rate		$687.10
Agreement Total Weekly Rate			$682.10
Percentage Difference			-0.73%

[50] A comparative sample for an employee working an actual roster has been provided (averaged over a month) below as per Rachel’s roster for November 2009 which has been converted to a 38 hour week. It is unclear whether Rachel is on loaded or unloaded rates for the purpose of the table below I have assumed the loaded rates apply. Additional information confirms her level is ‘Permanent Part Time Level 1 Shop Assistant’:

Rachel’s roster for November 2009

Loaded rates

Agreement Ordinary Rate	$19.78	Permanent Loaded Level 1 (21 years and over)		Award Ordinary Rate	$15.84	Shop assistant
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$751.64	Mon - Fri	6.07	100%	$96.15
0	150%	$0.00	Saturday	15.33	125%	$303.53
0	200%	$0.00	Sunday	16.61	150%	$394.65
Annual leave	4 Weeks per annum	$50.16
Annual leave loading	4 Weeks per annum	$8.78
Personal Leave	10 Days per annum	$24.08
Total			$751.64	Total	$877.35
Award Total Weekly Rate		$877.35
Agreement Total Weekly Rate			$751.64
Percentage Difference			-14.33%

[51] Given the deficiencies when a comparison of the agreement rates is made with the award rates, I am not satisfied that the requirements of the ‘no disadvantage’ test under items 4-6 of Part 2 of Schedule 7 of The Transitional Act are met. Pursuant to s.190 I invite the employer to provide an undertaking which meets my concerns. A draft undertaking is set out in Attachment A. This undertaking, or any other relevant submission or material, should be provided within seven (7) days.

[52] I am particularly concerned that Rachel has a deficiency of a large amount, some 14.33 per cent. It may be inequitable to accept an undertaking that does not immediately deal with such deficiencies, and I invite further consideration by the applicant of the form that an undertaking may take. I may dismiss the matter if I am not satisfied by the form of undertaking provided by the employer.

[53] Again, it is of concern to me that the statutory declaration provided by the employer contains the same false statement quoted above, and the false statement is to the advantage of the applicant employer.

Matter no. AG2009/20544 M.J & R.A Clarke Pty Ltd

[54] The rosters provided for Level 1 retail employees appear to be not fully consistent with the information provided at lodgement (see table below):

Table B	Table C
Working patterns provided at lodgement	Hours	Indicative hours for October 2009 (all employees proportionately averaged to a 38 hour week based on rosters)			Hours
Ordinary rate Mon - Fri 7am -6pm	26.2	Ordinary rate Mon - Fri 7am -6pm			24.62
Saturday	5.2	Saturday			4.78
Sunday	5.1	Sunday			5.68
Mon - Fri 6pm -10pm	1.5	Mon - Fri 6pm -10pm			2.92
Total hrs	38	Total hrs			38

[55] The two weeks of bread employee rosters generally indicate a higher proportion of penalty hours being worked than suggested at lodgement (See Table below).

Table BB	Table CC
Working patterns provided at lodgement for Level 3 Bread Employees	Hours	Indicative hours for October 2009 (all employees proportionately averaged to a 38 hour week based on rosters)	Hours
Ordinary rate Mon - Fri 6am -6pm	23.82	Ordinary rate Mon - Fri 6am -6pm	19
Saturday	5.3	Saturday	8.15
Sunday	3.58	Sunday	2.96
Mon - Fri 6pm -6am	5.3	Mon - Fri 6pm -6am	7.89
Total hrs	38	Total hrs	38

[56] The rosters for Bread employees are generally consistent with information provided at lodgement though indicate the potential for disadvantage, particularly when working a high proportion of weekend or morning hours before 6am (see table titled ‘Rod’s roster Week of 12 November 2009’)

[57] The reference instruments for the purposes of application of the ‘no disadvantage test’, by virtue of items 4-6 of Part 2 of Schedule 7 of The Transitional Act are:

• AP796250 Shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000



• AP769688 Bread Trade (Victoria) Award 1999

[58] To remain consistent with the calculations supplied by the employer at time of lodgement and provide comprehensive further analysis the averaged retail rosters have been compared to the AP796250 Shop Distributive and Allied Employees Association- Victorian Shops Interim Award 2000. Based on additional information the relevant rostered level that retail employees fall under is Part time Level 1 and one Trainee, hence the rosters provided have not been applied to casuals:

Table A

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Unloaded Level 1 Permanent Mon – Sun rate	$19.19	Retail Worker Grade 1	$15.86	21.00%
Loaded Level 1 Permanent Mon – Sun rate	$20.99	Retail Worker Grade 1	$15.86	32.35%
Loaded Level 1 Weekday rate	$18.35	Retail Worker Grade 1	$15.86	15.70%
Unloaded Level 1 Weekday rate	$16.56	Retail Worker Grade 1	$15.86	4.41%
Unloaded Trainee rate	$15.98	Trainee Rate	$13.18	21.24%
Loaded Trainee rate	$17.48	Trainee Rate	$13.18	32.63%

Table B	Table C
Working patterns provided at lodgement	Hours	Loading	Indicative hours for October 2009 (all employees proportionately averaged to a 38 hour week based on rosters)	Hours	Loading
Ordinary rate Mon - Fri 7am -6pm	26.2	100%	Ordinary rate Mon - Fri 7am -6pm	24.62	100%
Saturday	5.2	125%	Saturday	4.78	125%
Sunday	5.1	200%	Sunday	5.68	200%
Mon - Fri 6pm -10pm	1.5	125%	Mon - Fri 6pm -10pm	2.92	125%
Total hrs	38	Total hrs	38

Unloaded Level 1 Permanent Mon – Sun rate

Agreement Ordinary Rate	$19.19	Unloaded Level 1 Permanent Mon – Sun rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	Weekly total
Ordinary rate	38	100%	$729.22	Ordinary rate Mon - Fri 7am -6pm	24.62	100%	$390.47
Saturday	4.78	125%	$94.76
Sunday	5.68	200%	$180.17
Mon - Fri 6pm -10pm	2.92	125%	$57.89
Total			$729.22	Total	$723.30
Award Total Weekly Rate			$723.30
Agreement Total Weekly Rate			$729.22
Percentage Difference			0.82%

Loaded Level 1 Permanent Mon – Sun rate

Agreement Ordinary Rate	$20.99	Loaded Level 1 Permanent Mon – Sun rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	Weekly total
Ordinary rate	38	100%	$797.62	Ordinary rate Mon - Fri 7am -6pm	24.62	100%	$390.47
Saturday	4.78	125%	$94.76
Sunday	5.68	200%	$180.17
Mon - Fri 6pm -10pm	2.92	125%	$57.89
Annual leave	4 Weeks per annum	$50.22
Annual leave loading	4 Weeks per annum	$8.79
Personal Leave	10 Days per annum
Total			$797.62	Total	$806.41
Award Total Weekly Rate			$806.41
Agreement Total Weekly Rate			$797.62
Percentage Difference			-1.09%

Loaded Level 1 Weekday rate

Agreement Ordinary Rate	$18.35	Loaded Level 1 Weekday rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$697.30	Ordinary rate Mon - Fri 7am -6pm	35.08	100%	$556.37
Mon - Fri 6pm -10pm	2.92	125%	$57.89
Annual leave	4 Weeks per annum	$50.22
Annual leave loading	4 Weeks per annum	$8.79
Personal Leave	10 Days per annum
Total			$697.30	Total	$697.38
Award Total Weekly Rate			$697.38
Agreement Total Weekly Rate			$697.30
Percentage Difference			-0.01%

Unloaded Level 1 Weekday rate

Agreement Ordinary Rate	$16.56	Unloaded Level 1 Weekday rate		Award Ordinary Rate	$15.86	Retail Worker Grade 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$629.28	Ordinary rate Mon - Fri 7am -6pm	35.08	100%	$556.37
Mon - Fri 6pm -10pm	2.92	125%	$57.89
Total			$629.28	Total	$614.26
Award Total Weekly Rate			$614.26
Agreement Total Weekly Rate			$629.28
Percentage Difference			2.45%

Unloaded Trainee rate

Agreement Ordinary Rate	$15.98	Unloaded Trainee hourly rate		Award Ordinary Rate	$13.18	Trainee hourly rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate	38	100%	$607.24	Ordinary rate Mon - Fri 7am -6pm	24.62	100%	$324.49
Saturday	4.78	125%	$78.75
Sunday	5.68	200%	$149.72
Mon - Fri 6pm -10pm	2.92	125%	$48.11
Total			$607.24	Total	$601.07
Award Total Weekly Rate			$601.07
Agreement Total Weekly Rate			$607.24
Percentage Difference			1.03%

Loaded Trainee rate

Agreement Ordinary Rate	$17.48	Loaded Trainee hourly rate		Award Ordinary Rate	$13.18	Trainee hourly rate
Hours	Loading	weekly total	Hours	Loading	Weekly total
Ordinary rate	38	100%	$664.24	Ordinary rate Mon - Fri 7am -6pm	24.62	100%	$324.49
Saturday	4.78	125%	$78.75
Sunday	5.68	200%	$149.72
Mon - Fri 6pm -10pm	2.92	125%	$48.11
Annual leave	4 Weeks per annum	$41.74
Annual leave loading	4 Weeks per annum	$7.30
Personal Leave	10 Days per annum
Total			$664.24	Total	$670.15
Award Total Weekly Rate			$670.15
Agreement Total Weekly Rate			$664.24
Percentage Difference			-0.88%

[59] To remain consistent with the calculations supplied by the employer at time of lodgement and provide comprehensive further analysis the least averaged and a specific rosters have been compared to the AP769688 Bread Trade (Victoria) Award 1999. Rosters for the Bread employees may not be entirely indicative of actual hours as only two weeks of rosters were provided. Additional information indicates that the Bread employee rosters do not cover work performed by casuals. The levels covered by both the rosters and working models provided at lodgement are:

Table AA

Agreement Level	Per Hour	Award Level	Per Hour	% Difference
Permanent Unloaded Level 3 Bread Employee Hourly Rate	$20.90	Bread Trade Employee Level 5	$16.78	24.55%
Permanent Loaded Level 3 Bread Employee Hourly Rate	$22.80	Bread Trade Employee Level 5	$16.78	35.88%

Table BB	Table CC
Working patterns provided at lodgement for Level 3 Bread Employees	Hours	Loading	Indicative hours for October 2009 (all employees proportionately averaged to a 38 hour week based on rosters)	Hours	Loading
Ordinary rate Mon - Fri 6am -6pm	23.82	100%	Ordinary rate Mon - Fri 6am -6pm	19	100%
Saturday	5.3	150%	Saturday	8.15	150%
Sunday	3.58	200%	Sunday	2.96	200%
Mon - Fri 6pm -6am	5.3	130%	Mon - Fri 6pm -6am	7.89	130%
Total hrs	38	Total hrs	38

Averaged rosters applied to the Permanent Unloaded Level 3 Bread Employee Hourly Rate

Agreement Ordinary Rate	$20.90	Permanent Unloaded Level 3 Bread Employee Hourly Rate		Award Ordinary Rate	$16.78	Trade Rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$794.20	Ordinary rate Mon - Fri 6am -6pm	19	100%	$318.82
Saturday	8.15	150%	$205.14
Sunday	2.96	200%	$99.34
Mon - Fri 6pm -6am	7.89	130%	$172.11
Total			$794.20	Total	$795.41
Award Total Weekly Rate			$795.41
Agreement Total Weekly Rate			$794.20
Percentage Difference			-0.15%

Permanent Loaded Level 3 Bread Employee Hourly Rate

Agreement Ordinary Rate	$22.80	Permanent Loaded Level 3 Bread Employee Hourly Rate		Award Ordinary Rate	$16.78	Trade Rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	38	100%	$866.40	Ordinary rate Mon - Fri 6am -6pm	19	100%	$318.82
Saturday	8.15	150%	$205.14
Sunday	2.96	200%	$99.34
Mon - Fri 6pm -6am	7.89	130%	$172.11
Annual leave	4 Weeks per annum	$53.14
Annual leave loading	4 Weeks per annum	$9.30
Personal Leave	10 Days per annum	$25.51
Total			$866.40	Total	$883.35
Award Total Weekly Rate			$883.35
Agreement Total Weekly Rate			$866.40
Percentage Difference			-1.92%

[60] The following two tables demonstrate Rod's rostered hours for the week of 12 November 2009. Rod is a part time level 3 employee however whether Rod is on the loaded or unloaded rate was not stipulated:

Rod’s roster Week of 12 November 2009 - Permanent Unloaded Level 3 Bread Employee Hourly Rate

Agreement Ordinary Rate	$20.90	Permanent Unloaded Level 3 Bread Employee Hourly Rate		Award Ordinary Rate	$16.78	Trade Rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	22.5	100%	$470.25	Ordinary rate Mon - Fri 6am -6pm	9	100%	$151.02
Saturday	0	150%	$0.00
Sunday	7.5	200%	$251.70
Mon - Fri 6pm -6am	6	130%	$130.88
Total			$470.25	Total	$533.60
Award Total Weekly Rate			$533.60
Agreement Total Weekly Rate			$470.25
Percentage Difference			-11.87%

Rod’s roster Week of 12 November 2009 - Permanent Loaded Level 3 Bread Employee Hourly Rate

Agreement Ordinary Rate	$22.80	Permanent Loaded Level 3 Bread Employee Hourly Rate		Award Ordinary Rate	$16.78	Trade Rate
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary rate Mon - Sun	22.5	100%	$513.00	Ordinary rate Mon - Fri 6am -6pm	9	100%	$151.02
Saturday	0	150%	$0.00
Sunday	7.5	200%	$251.70
Mon - Fri 6pm -6am	6	130%	$130.88
Annual leave	4 Weeks per annum	$53.14
Annual leave loading	4 Weeks per annum	$9.30
Personal Leave	10 Days per annum	$25.51
Total			$513.00	Total	$621.55
Award Total Weekly Rate			$621.55
Agreement Total Weekly Rate			$513.00
Percentage Difference			-17.46%

[61] Given the deficiencies when a comparison of the agreement rates is made with the award rates, I am not satisfied that the requirements of the ‘no disadvantage’ test under items 4-6 of Part 2 of Schedule 7 of The Transitional Act are met. Pursuant to s.190 I invite the employer to provide an undertaking which meets my concerns. A draft undertaking is set out in Attachment A. This undertaking, or any other relevant submission or material, should be provided within seven (7) days.

[62] The deficiencies in this agreement are considerable. For example, Rod has a deficiency of 17.46 per cent, and there are others, and it may not be appropriate to accept an undertaking in such circumstances, or an undertaking must immediately address such a large deficiency, and others. I invite any suggested undertaking that the applicant employer has and I may dismiss the application if I am not satisfied with the response provided by the employer.

[63] Again, it is of concern to me that the statutory declaration provided by the employer contains the same false statement quoted above, and the false statement is to the advantage of the applicant employer.

DEPUTY PRESIDENT

Appearances:

Ms A Grant, solicitor, for the applicants

Hearing details:

Melbourne

2010

24 March

Attachment A.

Draft Undertaking – Reconciliation

1. The employer will on request every six (6) months and at least once annually conduct a reconciliation of the amount that the employee would have earned under the Agreement and the amount that the employee would have earned under the relevant award [insert relevant reference instrument or instruments].

2. If there is a deficiency, the employer will pay that deficiency to the employee within 21 days.

3. If there is a disagreement between the employer and employee that disagreement will be dealt with pursuant to the dispute settlement clause of the agreement (insert clause number).

4. The same reconciliation will be made when the employment relationship ceases, except that any deficiency will be paid with accrued entitlements.

ends

 1   PN41,45, 49, 55, 59,61,63,67,69

 2   [2010] FWAFB 2762, Acton SDP, Sams DP, Williams C, 15 April 2010

 3   This issue has also been addressed by Whelan C in AG2009/12944.

 4   [2010] FWAFB 2762, Acton SDP, Sams DP, Williams C, 15 April 2010

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