The Trustee for the Alnoor Investment Trust

[2013] FWCA 1760

[2013] FWCA 1760

FAIR WORK COMMISSION

DECISION

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

The Trustee for the Alnoor Investment Trust
(AG2013/562)

THE TRUSTEE FOR THE ALNOOR INVESTMENT TRUST ENTERPRISE AGREEMENT 2013

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2013

The Trustee for the Alnoor Investment Trust Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Trustee for the Alnoor Investment Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Trustee for the Alnoor Investment Trust Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 13 employees who are employed at the applicant’s coffee shop in Castle Hill, New South Wales, all of whom are casual employees. This coffee shop is operated on a franchisee basis and is commonly known as ‘Gloria Jean’s Coffee’.

[2] The employees were last notified of their representational rights on 15 September 2012, and voting for the Agreement’s approval took place on 25 February 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 13 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 March 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Ahmad, Director, identified the Fast Food Industry Award 2010 [MA000003] and the Shop Employees (State) Award [AN120499] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Ahmadsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of annual leave loading and a laundry allowance, which have been ‘loaded’ into a higher base rate of pay. However, the Agreement also provides for some terms and conditions which are more beneficial than, or in excess of those under the reference instruments, including higher base rates of pay, and a guarantee that casual employee rates of pay will remain 25% above the relevant base rate of pay. Rates will be adjusted according to the Commission’s Annual Minimum Wage Review. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure at clause 5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 15 March 2013, Ms L Miller, Solicitor,appeared for the applicant. Ms Miller outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that permanent employees would be better off under the Agreement by at least 40 cents per hour. The rate of pay for casual employees would be higher due to the casual loading on the permanent rate and would be better off under the Agreement by at least 47 cents per hour. She also submitted that the applicant had found it administratively difficult to deal with multiple penalty rates and had made the decision to have two flat pay structures: one which applied to employees working on weekdays and one which applied to employees working on weekends.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Trustee for the Alnoor Investment Trust Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 22 March 2013 and have a nominal expiry date of 21 March 2017.

DEPUTY PRESIDENT

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