SKM Pty Ltd T/A Grill'd Waurn Ponds

[2014] FWCA 4496

FAIR WORK COMMISSION

DECISION

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

SKM Pty Ltd T/A Grill'd Waurn Ponds
(AG2014/1347)

GRILL'D WAURN PONDS ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	PERTH, 7 JULY 2014

Application for approval of the Grill'd Waurn Ponds Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Waurn Ponds 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] On 24 June 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to overtime under the Agreement.

[3] Correspondence was received from the Applicant on 1 July 2014.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime, at overtime rates for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite not receiving overtime, an entitlement that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant is a small business that currently only employs one salaried employee and pays that employee an amount above what is provided for under the Agreement, that is, whilst the Agreement provides an Assistant Business Manager with a minimum salary of $47,487 per annum, the employer actually provides the employee with a higher remuneration of $48,500 per annum. However, payments made outside the Agreement, have no legislative force and are not able to be considered under the better off overall test. Further, the number of salaried employees engaged is not relevant to the application of the better off overall test. The Agreement provides for such a classification, it must be assessed against the better off overall test.

[7] However, I am satisfied upon review of the roster and calculations provided by the Applicant that despite salaried employee’s not receiving overtime they will still be better off overall all given the higher rate of pay.

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

SKM Pty Ltd, trading as Grill'd Waurn Ponds, applied to the Fair Work Commission for approval of the Grill'd Waurn Ponds Enterprise Agreement 2014. The application involved a dispute concerning the terms and conditions of employment for the employees of Grill'd Waurn Ponds, a franchisee of the Grill'd franchise. The Fair Work Commission, under the Fair Work Act 2009, was tasked with assessing the fairness of the proposed agreement.

The legal issues before the Commission included whether the agreement was procedurally and substantively fair. Procedural fairness required the agreement to be made following the necessary processes, such as ensuring genuine consultation and providing sufficient information to the employees. Substantive fairness examined whether the terms of the agreement were fair and reasonable in all the circumstances, including factors such as the nature of the employment, the bargaining positions of the parties, and the overall balance of the agreement.

The Commission found that the agreement was procedurally fair as it was the result of genuine and meaningful consultation between the parties. However, it identified several areas of substantive unfairness, including the level of compensation and the absence of provisions addressing specific employee needs. After considering these factors, the Commission approved the agreement with certain modifications to address the identified issues of substantive unfairness. These modifications included adjustments to the compensation and the inclusion of specific clauses to better protect the employees' interests.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established