Tasty Trucks Vic Pty Ltd

[2015] FWCA 7084

[2015] FWCA 7084

The decision issued by the Fair Work Commission on 16 October 2015, [2015] FWCA 7084 is corrected as follows:

1. By inserting the words “Tasty Trucks” in the preamble of the decision.

Melissa Phang

Associate to Deputy President Bull

Dated 20 October 2015

[2015] FWCA 7084

FAIR WORK COMMISSION

DECISION

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

Tasty Trucks Vic Pty Ltd
(AG2015/4786)

TASTY TRUCKS VAN STAFF ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 OCTOBER 2015

Application for approval of the Tasty Trucks Van Staff Enterprise Agreement 2015

[1] An application has been made for the approval of an enterprise agreement known as the Tasty Trucks Van Staff Enterprise Agreement 2015 (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, and covers van managers engaged by the employer.

[1] The application is made by the employer, Tasty Trucks Vic Pty Ltd(the applicant). The Shop Distributive and Allied Employees Association (the SDA) was a bargaining representative involved in the agreement making process. The Fast Food Industry Award 2010 (the Award) is the relevant reference award for the purposes of the better off overall test (BOOT) as per s.186 of the Act.

Issues raised by the SDA

[2] The SDA have submitted a statutory declaration in relation to the approval of the Agreement (F18), noting that it supports the approval of the Agreement and wants to be covered by it. However, the SDA noted in its F18 that it did not agree with some of the characterisations made in the applicant’s statutory declaration (F17), in particular that:

1. With respect to overtime at cl.13, the Agreement provides for time off in lieu as an option at the ‘single time rate’ as opposed to the Award being calculated at the penalty equivalent;

2. With reference to the “time off instead of overtime payment” option under the Award, it can be hours worked in excess of 38 hours per week for a 4 week period as opposed to being averaged over 8 weeks under the Agreement; and

3. The Agreement does not provide for annual leave loading as per the Award, but rather incorporated into the hourly rate of pay.

[3] The applicant was requested by the Commission to respond to the issues raised by the SDA.

[4] The applicant submits that the reduced time off in lieu with respect to overtime is acknowledged, but the employee has the right of choice.

[5] In this regard, the Commission notes that the applicant declared in its employer statutory declaration (F17) that with respect to clause 13 – overtime, employees having the option of receiving the penalty payment or time off as a term that is “more beneficial” than the Award, and at 3.5 of the F17 stated that overtime – time in lieu if elected by an employee, would be a term that is “less beneficial” under the Agreement as it is at single time.

[6] Having regard to the submissions of both parties, the rate at which the time off instead of payment for overtime under the Agreement can only be characterised as being less beneficial than the Award, however, this is dually noted in the applicant’s submitted F17.

[7] The applicant’s characterisation of the ‘option to elect’ to receive the time off instead of payment for overtime, that is at the discretion of the employee under the Agreement as opposed to ‘mutual agreement’ under the Award, may be considered as being more beneficial. However, taking in to account the overtime being averaged over 8 weeks under the Agreement as opposed to 4 weeks under the Award for which an employee may take time off in lieu of overtime, the Commission is not satisfied that cl. 13 with respect to time off instead of overtime is more beneficial than the Award.

[8] Having said this, the better off overall test is the global assessment of the Agreement; that is to take into account the terms of the Agreement as a whole and not the identification of any single provision, which was the principle adopted by the Full Bench of the Commission in Armacell Australia Pty and Others. 1

[9] Taking into account the greater entitlements under the Agreement than the Award, I am satisfied that as a whole, the Agreement will provide a greater benefit in terms than the Award, including:

i. part time employees being entitled to a minimum12 hour weekly engagement period;
ii. confined ordinary hours of work span;
iii. greater leave entitlements;
iv. no separate junior rates; and
v. increased rates of pay.

[10] With respect to the annual leave loading being incorporated into the hourly rate of pay under the Agreement, I have had regard for this with reference to the BOOT.

Single interest employer test

[11] Pursuant to s.172(2) of the Act, the Commission requested the applicant address how 3 employers may make a single enterprise agreement, and in particular, how the applicant would satisfy the single interest employer test under s.172(5) of the Act.

[12] The single interest employer test under s.172(5) of the Act:

Single interest employers
             (5)  Two or more employers are single interest employers if:
   (a)  the employers are engaged in a joint venture or common enterprise; or
   (b)  the employers are related bodies corporate; or

(c)  the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

[13] The applicant submits that the employers to be covered by the Agreement are all engaged in the common enterprise of the business of Tasty Trucks through franchise agreements, thereby meeting the requirements under s.172(5) of the Act.

Requirements under the Act

[14] Pursuant to s.172(5)(a) of the Act, I am satisfied that the employers to be covered by the Agreement are single interest employers within the meaning of the Act.

[15] As specified in cl.1 of the Agreement – Parties to the Agreement, the employees to be covered by the Agreement are van managers engaged by the employer. Pursuant to s.186(3), I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[16] The SDA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it supports the approval of the Agreement and wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[17] I have had regard to the issues raised by the SDA, and for the reasons outlined above I am satisfied that the Agreement as a whole; results in employees being better off overall.

[18] 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.

[19] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 23 October 2015. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

 1   [2010] FWAFB 9985 at [41]

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