Virani Pty Ltd T/A Oporto Carillon

[2014] FWCA 7722

[2014] FWCA 7722

FAIR WORK COMMISSION

DECISION

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

Virani Pty Ltd T/A Oporto Carillon
(AG2014/7593)

OPORTO CARILLON - ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 30 OCTOBER 2014

Application for approval of the Oporto Carillon - Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Oporto Carillon - 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] On 14 October 2014, the Commission wrote to the Applicant via its representative, Agnew Legal Pty Ltd, in relation to a number of concerns it had with the Agreement. In particular, the concerns related to the meal breaks, minimum hours per shifts, weekend and public holiday penalties. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 21 and 27 October 2014.

Extension of time

[4] The application was lodged at Perth on 19 September 2014. Section 185(3)(a) of the Actprovides that an application for approval must be made within 14 days after the Agreement is made. I note that the application was lodged out of time. Section 185(3)(b) of the Actconfers a discretion on FWC to extend time. In light of the reasons provided by the Applicant, I have decided to exercise the discretion provided by subsection 185(3)(b) of the Act and extend time accordingly.

Undertakings

Minimum hours per shifts

[5] The Commission notes that clause 4.1.2 – Hours of work – Part-time Employees, in particular, sub clause 4.1.2(b) of the Agreement provides that the minimum daily engagement of a part-time employee is a minimum of two hours per shift. The Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides that the minimum daily engagement of a part-time employee is three hours.

[6] The Applicant has provided an undertaking with respect to sub clause 4.1.2(b) of the Agreement that a part-time employee will be provided a minimum three hours per shift.

[7] The Commission notes that sub clause 4.1.3 of the Agreement provides that a casual employee will be engaged on the basis of a minimum of 2 hours per shift. The Award provides that the minimum daily engagement of a casual employee is three hours.

[8] The Applicant has provided an undertaking with respect to sub clause 4.1.3 of the Agreement that a casual employee will be provided a minimum three hours per shift.

Meal and rest breaks

[9] The Commission notes that clause 4.4 – Breaks, of the Agreement provides that all employees are entitled to an unpaid meal break of 30 minutes if they work more than 5 consecutive hours in a shift and that all employees will be entitled to one paid 10 minute rest break each 4 continuous hours worked. The Award at clause 27.1 provides for further meal and rest breaks where hours of work are beyond 5 hours.

[10] The Applicant has provided an undertaking with respect to clause 4.4 of the Agreement that it will apply the following meal and rest breaks:

“4.4 BREAKS

4.4.1 Breaks will be given as follows:

Hours worked	Rest break	Meal break
Less than 4 hours	No rest break	No meal break
4 hours but less than 5 hours	One 10 minute rest break	No meal break
5 hours but less than 9 hours	One 10 minute rest break	One meal break of at least 30 minutes but not more than 60 minutes
9 hours or more	One or two 10 minute rest breaks, with one taken in the first half of the work hours and the second taken in the second half of the work hours, two rest breaks will be given unless a second meal break is provided	One or two meal breaks of at least 30 minutes but not more than 60 minutes

4.4.2 Rest breaks are paid breaks and meal breaks are unpaid breaks.”

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

[12] 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 substantial change to the Agreement as per s.190(3)(b) of the Act.

Weekend and public holiday penalties

[13] The Commission notes that the Agreement does not provide for weekend and public holiday penalties as employees are compensated for these in the hourly rate of pay being higher than the Award. The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement despite the Agreement not providing for these penalties.

[14] The Applicant provided a number of indicative rosters and calculations. The rosters demonstrated that where employees were to work weekends and public holiday’s employees would be better off overall under the Agreement despite not being afforded penalties the employees would have received under the Award.

[15] Upon review of the correspondence and undertakings I am satisfied the Agreement meets the better off overall test.

[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 6 November 2014. The nominal expiry date of the Agreement is 1 June 2015.

[18] A copy of this decision is to be made available to and brought to the attention of all employees.

COMMISSIONER

Annexure A

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