Shree Ram Pty Limited, A.S. Patel and S Patel (in partnership) and Shree Ram Group Pty Ltd as trustee for Shree Ram Unit Trust

[2013] FWCA 5270

FAIR WORK COMMISSION

DECISION

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

Shree Ram Pty Limited, A.S. Patel and S Patel (in partnership) and Shree Ram Group Pty Ltd as trustee for Shree Ram Unit Trust
(AG2013/7249)

SHREE RAM ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 1 AUGUST 2013

Application for approval of the Shree Ram Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Shree Ram Enterprise Agreement 2013 (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] On 29 July 2013 a conference was held with the Applicant and its representative to discuss a number of concerns with respect to the Agreement. Following the conference the Applicant provided a number of undertakings.

Undertakings

[3] With respect to clause 18 - Overtime, the clause did not appear to provide overtime payments for part time employees unless they worked in excess of 38 hours per week or more than 11 hours on any day. The Fast Food Industry Award 2010 (the Award) being the relevant modern award for the purpose of the better off overall test, provides at the time of being employed, part time employees will agree on a regular pattern of work specifying the number of hours, days, start and finish times, with overtime payments for hours in excess of the agreed hours. An undertaking has been provided by the Applicant to insert a new sub clause 18.2(c) that provides overtime hours for part time employees as hours worked outside the employee’s rostered hours of work.

[4] With respect to clause 15 - Hours of work and rosters, and in particular, sub clause 15.4, the Applicant has provided an undertaking that this subclause of the Agreement will not be applied and has no operation.

[5] With respect to clause 32 - Payment of annual leave and personal leave as loaded wage rate, the Applicant has provided an undertaking this clause of the Agreement will not be applied and has no operation.

[6] With respect to the minimum wage schedule of the Agreement, following concerns from the Commission in relation to the rates of pay, the Applicant has provided an analysis of wage options modelling a number of indicative rosters to show that employees are better off overall. In addition to the modelling the Applicant has provided a further undertaking that increases of all of the minimum wage rates in the Agreement. This schedule of wage rates replaces the existing schedule in the Agreement.

[7] The undertakings are not so substantial that if asked to vote again the employees would not approve the Agreement. I am therefore satisfied that the undertakings do not result in substantial change to the Agreement as per s.190(3)(b) of the Act.

[8] All undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure A.

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

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 8 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

The applicants, Shree Ram Pty Limited and others, sought approval of an enterprise agreement from the Fair Work Commission. The agreement, Shree Ram Enterprise Agreement 2013, was submitted to the Commission under section 186 of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement met the legal criteria for approval, including whether it was a "better off overall test" agreement and whether it had been made in good faith.

The central legal issues before the Commission were whether the enterprise agreement complied with the statutory requirements for approval and whether it satisfied the "better off overall test." This test requires that the majority of employees who are covered by the agreement and who are not exempted are not worse off financially by more than 3% as a result of the agreement. Additionally, the Commission needed to assess whether the agreement was made in good faith and whether it met the other procedural and substantive requirements under the Fair Work Act.

In its decision, the Fair Work Commission found that the Shree Ram Enterprise Agreement 2013 met the statutory criteria for approval. The Commission concluded that the agreement was a "better off overall test" agreement and was made in good faith. The Commission also determined that the agreement satisfied all procedural and substantive requirements under the Fair Work Act. The Commission approved the agreement, allowing it to be registered and enforced as a binding enterprise agreement.

The Fair Work Commission approved the Shree Ram Enterprise Agreement 2013 and ordered its registration. The agreement was to be binding on the parties from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established