The Chimney Cake Company Pty Ltd T/A Kürtosh

[2013] FWCA 9773

[2013] FWCA 9773

FAIR WORK COMMISSION

DECISION

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

The Chimney Cake Company Pty Ltd T/A Kürtosh
(AG2013/10968)

THE KURTOSH HOUSE ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 12 DECEMBER 2013

Application for approval of the Kurtosh House Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kurtosh House 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 21 November 2013, the Commission sent correspondence to the Applicant via its legal representative alerting it to a number of concerns the Commission had with aspects of the Agreement. These concerns included, overtime, casual loading, salaries and meal breaks.

[3] Correspondence was received from the Applicant on 25 November and 11 December 2013.

Undertakings

Overtime

[4] Upon review of the Agreement the Commission raised concerns with the Applicant that where an employee is rostered to work for 7 consecutive days, the employee may be disadvantaged by the operation of the Agreement with respect to clause 18 - Overtime. In particular, the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test, provides for the payment of overtime for all work in excess of five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days).

[5] The Applicant has provided an undertaking with respect to sub clause 18.2 of the Agreement that it shall be applied as if a new sub clause 18.2(d) were inserted. Sub clause 18.2(d) provides that overtime is hours worked by an employee in excess of five days per week (or six days in one week if in the following ordinary week ordinary hours are worked on not more than four days).

Casual employees

[6] Upon review of the rates of pay with respect to casual employees, the Commission noted that casual employees engaged under the Agreement who only work on weekends would not be better off overall.

[7] The Applicant has provided an undertaking that in any particular week, casual employees who are rostered to work only on weekend shifts shall be entitled to receive an additional 5 per cent loading per hour calculated on their casual rate of pay.

Salaries

[8] The Commission notes at clause 21 - Annualised Salary of the Agreement it provides that an employee may be paid a salary and if so the salary would be inclusive of overtime penalties, annual leave loading and allowances.

[9] The Commission requested an undertaking be provided that requires the annual salary to be reviewed by the Applicant annually to ensure that the compensation is appropriate having regard to the Award provisions which are satisfied by the payment of the annual salary.

[10] The Applicant has provided an undertaking that salaried employees shall have their salaries reviewed by the Applicant each year to ensure compliance with sub clause 21.2 of the Agreement.

[11] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

Better off overall test

[12] The Commission notes that the Applicant’s Form F17 - Employer’s declaration in support of application for approval of enterprise agreement that was lodged with the application states that the Agreement marginally provides an entitlement that is better overall. However, modelling undertaken by the Commission differed from the modelling undertaken by the Applicant’s calculations which relied on an employee receiving a minimum of five meals valued at $10.00 per meal, as per sub clause 27.2 of the Agreement. The Commission alerted the Applicant that part time employees whose terms and conditions of employment are proportionate to those of a full time employee, may not work sufficient hours to receive this benefit.

[13] In its correspondence dated 25 November 2013, the Applicant provided an undertaking that stated all employees including part time and casual employees will be entitled to a free meal for each shift worked, irrespective of their shift length. The Applicant submitted that the provision of free meals should be taken as a relevant benefit in the application of the better off overall test.

[14] I am unable to accept the Applicant’s submission that the provision of free meals should be taken as a relevant benefit in the application of the better off overall test. The provision of a meal as an entitlement when applying the better off overall test is contingent upon the actual benefit to each employee, which will vary between employees. An employee may not wish to avail themselves of the meal provided on each occasion they attend work thus its value will diminish. Further the apportioned benefit of $10.00 per meal is not considered for any other purpose including the calculation of superannuation, overtime or annual leave.

[15] While I have not taken into consideration the provision of a meal as an entitlement, upon review of the Applicant’s correspondence including the undertakings and the revised modelling it has provided, I am satisfied that employees are marginally better off overall.

[16] 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.

[17] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 December 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

<Price code G, AE405855  PR545641>