Tryan1 Bake Pty Ltd

[2014] FWCA 4304

[2014] FWCA 4304

FAIR WORK COMMISSION

DECISION

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

Tryan1 Bake Pty Ltd
(AG2014/1015)

TRYAN1 BAKE PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 30 JUNE 2014

Application for approval of the Tryan1 Bake Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Tryan1 Bake Pty Ltd 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] The Commission wrote to the Applicant via its representative on 14 and 22 May 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the public holiday penalties, hours of work and loaded wage rates.

[3] Correspondence was received from the Applicant on 20 May and 27 June 2014.

Public holidays

[4] With respect to clause 14 - Public Holidays of the Agreement, the Commission noted in its correspondence to the Applicant that the penalty received for work on a public holiday was less than the penalty provided under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] The Commission requested a number of indicative rosters and calculations to demonstrate that employees are better off under the Agreement when they work on a public holiday.

[6] The Applicant has provided a number of indicative rosters and calculations that demonstrate employees are better off overall under the Agreement than they would be under the Award where they work in a roster period which includes public holidays.

[7] Upon review of the indicative rosters and calculations I am satisfied that employees would be better off overall despite the public holiday penalties being less than the penalties provided under the Award.

Undertakings

Hours of work

[8] In its correspondence to the Applicant the Commission noted that clause 8 - Hours of Work, and in particular, sub clause 8.1 of the Agreement provides that employees ordinary hours work can be worked on any day Monday to Sunday, inclusive of public holidays. The Award, being the relevant modern award for the purpose of the better off overall test provides for the following span of ordinary hours:

● Monday to Friday: 7:00am to 9:00pm
● Saturday: 7:00am to 6:00pm
● Sunday 9:00am to 6:00pm

[9] The Applicant has provided an undertaking that the ordinary hours of work for retail employees under the Agreement will be :

● Monday to Friday: 6:30am to 7:30pm
● Saturday: 7:00am to 7:00pm
● Sunday: 8:00am to 7:00pm.

[10] Further, the Applicant has undertaken with respect to clause 9 - Overtime, and in particular, sub clause 9.1, that all time worked outside the ordinary hours specified in the Agreement will be overtime.

[11] Despite the span of ordinary hours provided by the Applicant being greater than the span of ordinary hours provided under the Award, the Applicant has provided a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement.

Loaded wage rates

[12] The Commission noted in its correspondence to the Applicant that the Agreement at clause 10 - Remuneration, and in particular sub clause 10.8, provides for a loaded wage rate inclusive of annual leave.

[13] The Full Bench decision in Canavan Building Pty Ltd [2014] FWCFB 3202 held that provisions that allow annual leave to be incorporated into the hourly rate of pay are inconsistent with s.55(1) and s.93 of the Act.

[14] The Applicant has provided an undertaking that clause 10.8 will be void and have no legal effect.

[15] Upon review of the correspondence and undertakings, I am satisfied that employees would be better off overall under the Agreement.

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

[17] 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.

[18] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 7 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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