ToCa Group Pty Ltd

[2013] FWCA 6804

[2013] FWCA 6804

FAIR WORK COMMISSION

DECISION

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

ToCa Group Pty Ltd
(AG2013/1760)

TOCA GROUP PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER BULL	SYDNEY, 10 SEPTEMBER 2013

Application for approval of the ToCa Group Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ToCa Group Pty Ltd 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 5 August 2013, the Commission alerted the Applicant via their legal representative that it had a number of concerns with aspects of the Agreement. These issues concerned clause 3 - Contract of employment; and the failure to have regard to the transitioning penalties under the relevant modern award and rates of pay contained in the Agreement.

[3] Correspondence was received from the Applicant’s legal representative on 12 August and 4 September 2013.

Undertakings

[4] With respect to clause 3 - Contract of employment, and in particular, sub clause 3.2, the Commission requested an undertaking be provided that states that pursuant to the Fast Food Industry Award 2010 (the Award) being the relevant modern award for the purpose of the better off overall test, any agreement to vary the regular patter of work with respect to part time employees will be made in writing before the variation occurs.

[5] The Applicant has provided an undertaking that sub clause 3.2 of the Agreement will be deleted and replaced in its entirety by a new sub clause 3.2 that provides that any variation to the regular pattern of part time hours of work may be made by agreement between the employer and the part time employee, provided that such agreement is made in writing prior to the variation occurring.

Wage rates

[6] With respect to the minimum wage schedule of the Agreement, the Commission advised the Applicant that the Agreement did not appear to have taken into account the transitioning penalties and wages provided for in the Award.

[7] On the 12 August 2013, the Applicant provided a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement.

[8] Following wage modelling undertaken by Commission on the rates of pay and the indicative rosters provided by the Applicant, the Commission was not satisfied that the rates of pay had taken into account the transitioning penalties and minimum wages in the Award.

[9] The Commission advised the Applicant of its concerns with respect to the rates of pay and provided a copy of the Commission’s wage modelling to the Applicant on 29 August 2013.

[10] Following this concern on the 4 September 2013 the Applicant provided an undertaking that increased all of the minimum wage rates in the Agreement. This schedule of wage rates replaces the existing schedule in the Agreement.

[11] I am satisfied the Agreement meets the better off overall test.

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

[13] All undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached at Annexure A.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 17 September 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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