TeamHux Pty Ltd T/A Huxtaburger

[2014] FWCA 8966

[2014] FWCA 8966

FAIR WORK COMMISSION

DECISION

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

TeamHux Pty Ltd T/A Huxtaburger
(AG2014/8190)

HUXTABURGER ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 11 DECEMBER 2014

Application for approval of the Huxtaburger Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Huxtaburger 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 2 December 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to employees who receive a salary under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 9 December 2014.

[4] With respect to clause 11 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime 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. Further, the salaries contained in the Agreement are inclusive of all loadings, other than those provided for in the Agreement.

[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 the salaries being inclusive of loadings and not receiving overtime, entitlements 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 currently has three stores in Victoria and each store currently engages employees as store managers and assistant store managers (salaried employees).

[7] The Applicant has provided calculations based on salaried employees working on average 2.6 to 3.19 hours of overtime each week. I am satisfied upon review of the indicative rosters and calculations provided by the Applicant that despite the salaries being inclusive of loadings and salaried employee’s not receiving overtime they will still be better off overall given the higher rate of pay under the Agreement when compared to the Award.

[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 18 December 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[10] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

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