The Trustee for the Stephenson Family Trust T/A Mansico Pty Ltd

[2015] FWCA 3776

[2015] FWCA 3776

FAIR WORK COMMISSION

DECISION

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

The Trustee for the Stephenson Family Trust T/A Mansico Pty Ltd
(AG2015/899)

MANSICO PTY LTD ENTERPRISE AGREEMENT 2015

Retail industry
COMMISSIONER BULL	SYDNEY, 4 JUNE 2015

Application for approval of the Mansico Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Mansico Pty Ltd 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.

[2] On 27 May 2015 and 1 June 2015, the Fair Work Commission (the Commission) wrote to the applicant with respect to the better off overall test (BOOT). In particular, the concerns raised by the Commission were with respect the loaded hourly rates of pay contained in Schedule B - Minimum Rates of Pay of the Agreement, and a lower public holiday penalty loading in comparison to the General Retail Industry Award 2010 (the Award) being the relevant award for the purposes of the BOOT.

[3] In its application, the applicant submitted that the higher hourly rate of pay under the Agreement compensated for the loaded hourly rates of pay to include weekend penalty loadings, early morning shift penalties and a lower public holiday loading, and that employees would be better off under the Agreement. The applicant provided a number of calculations between the Award and the Agreement based on the hours worked by employees over a 4 week period in support of their application.

[4] On 27 May 2015, the Commission requested the applicant provide the rosters which justified the hours worked as specified in its application.

Casual Baking Employees

[5] Upon reviewing the rosters provided by the applicant, the Commission was concerned that the rates of pay for casual baking employees were not high enough to compensate for the incorporation of an early morning shift penalty, weekend penalties as well as a reduction of the public holiday penalty loading. The Commission requested the applicant provide undertakings to satisfy the better off overall test.

Undertaking

[6] The applicant has provided undertakings with respect to casual baking employees which contain an:

i. Increased public holiday penalty loading; and

ii. Increased rate of pay.

[7] Having regard to the undertakings and rosters provided by the applicant, I am satisfied that the Agreement results in employees being better off under the Agreement.

[8] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[9] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[10] 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.

[11] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 11 June 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[12] This decision and undertakings should be brought to the attention of the employees by the applicant.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code A, AE414199  PR568030>