Walfam Pty Ltd T/A Grill'd Camberwell

[2015] FWCA 7306

[2015] FWCA 7306

FAIR WORK COMMISSION

DECISION

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

Walfam Pty Ltd T/A Grill'd Camberwell
(AG2015/5072)

GRILL'D CAMBERWELL ENTERPRISE AGREEMENT 2015

Fast food industry
COMMISSIONER ROE	MELBOURNE, 22 OCTOBER 2015

Application for approval of the Grill'd Camberwell Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Grill’d Camberwell Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Walfam Pty Ltd T/A Grill’d Camberwell (the Applicant or Grill’d). The agreement is a single-enterprise agreement.

[2] In an earlier decision I terminated the Grill’d Camberwell Greenfields Agreement 2007 [[2015] FWCA 5236]. I assisted the parties during the bargaining process for the new Agreement. United Voice and Ms Kahlani Pyrah, the employee who successfully applied to terminate the 2007 Agreement, were bargaining representatives. I am satisfied and there is no dispute that the procedural requirements for the making of the Agreement were met and that a majority of employees who will be covered by the Agreement voted in favour of the Agreement. However, the Fair Work Commission and the bargaining representatives raised a number of issues concerning the Better Off Overall Test. I directed the parties to provide material in advance of a hearing which was held on 9 October 2015.

[3] United Voice and Ms Pyrah argued that the relevant Award for the purpose of the BOOT was the Restaurant Industry Award 2010 and not the Fast Food Industry Award 2010 nominated by Grill’d. The bargaining representatives pointed to a number of factors including the fact that a majority of customers use table service and the sale and service of alcohol as indicators that the Restaurant Industry Award was applicable. Grill’d pointed to the fact that a large number of other Grill’d Agreements have been approved by the Fair Work Commission utilising the Fast Food Industry Award as the relevant award and they submitted that, consistent with the Award definition, food is “served in such a manner as to allow their being taken from the point of sale to be consumed elsewhere should the customer so decide”. Grill’d submitted that sales of alcohol are minor and that a number of other fast food outlets such as KFC also sell alcohol. On balance I am satisfied that the Fast Food Industry Award 2010 is the relevant award for the purpose of the BOOT.

[4] I advised the parties of the following concerns. I took into account the provisions in the Agreement, particularly the pay rates, which were above the Award and the provisions in the Agreement, particularly the absence of penalty rates, which were below the Award.

“The Commissioner is concerned that the limitations on the frequency of work on shifts exceeding 11 hours, at penalty times, on Sundays and public holidays are limitations on the frequency which employees are required to work. Under the Award part time employees, unlike casuals, have reasonably predictable hours of work and regular weekly hours which can only be varied by agreement. Under the Agreement it does not appear that part time employees have regular weekly hours. Employees are allocated hours which, as with a casual employee, are selected to meet the needs of the employer from the employee’s available working times but there is no guarantee that employees will get any particular number of hours within the available working times they have selected. This makes the term “required” ambiguous. The term “rostered” better reflects the working hours provisions of the Agreement. Unless the term “rostered” or some equivalent term is used employees could regularly be allocated hours and hence work more than the frequency of penalty shifts specified. Should employees work the greater frequency of penalty shifts then the BOOT would not be met.

The Commissioner is unsure how it is intended that the NES requirement (Section 116) for an employee who is absent from work on a public holiday to be paid for the ordinary hours of work on that day should operate in respect to a part time employee.

The Commissioner is concerned that the Agreement includes a requirement to work at another location without any provision for travelling time or travel costs as provided for in the Award.

The Commissioner is concerned that the salaried employees are not subject to any limitation in respect to weekend, public holiday or overtime work. Without some limitation, particularly on the number of additional hours, the Commissioner could not be satisfied that the BOOT is met.”

[5] I also raised a concern that if a part time employee worked a significant proportion of their hours on weekends over a 12 week roster cycle they would not be better off overall.

[6] The bargaining representatives referred to circumstances where employees would not be Better Off Overall.

[7] I am satisfied that the Agreement does not restrict the frequency of work on shifts exceeding 11 hours, at penalty times, on Sundays and public holidays. Employees may be rostered for shifts outside of the limitations referred to in the Agreement. The BOOT operates in respect to prospective employees. The BOOT cannot be satisfied simply by reference to current practices or rosters. The BOOT cannot be satisfied simply by reference to what the employer may require, what may be done voluntarily is also relevant. The BOOT is concerned with what the Agreement permits or allows when compared to what the Award permits or allows.

[8] I am satisfied that where a part time employee works a significant proportion of their hours on weekends they would not be Better Off Overall given the absence of penalty payments under the Agreement. I therefore required an undertaking which restricts the proportion of hours which can be worked on weekends over a 12 week roster cycle.

[9] I required an undertaking to address the absence of compensation for travelling time and costs when employees are required to work at other stores.

[10] I am satisfied that full time salaried employees will generally be better off overall if they do not work overtime. That is, the salary is sufficient to compensate for the absence of shift penalties, annual leave loading, public holiday loadings and laundry allowance. However, if the salaried employees work significant overtime they would not be better off overall. I required an undertaking to limit the amount of overtime which can be worked by salaried employees without additional compensation. I required the same undertaking limiting the proportion of weekend work for part time salaried employees as I did for the non-salaried employees.

[11] The NES provides that a part time employee who would normally have been rostered for work on a day when there is a public holiday is entitled to the day off with pay. Under the Award a part time employees days and hours of work are regular and agreed and can only be changed by written agreement. The roster system under the Agreement involves an employee nominating availability and then available shifts being allocated by the employer taking the availability into account. I was concerned that under this system part time employees might never be paid for public holidays when they are not required to work and this would be a significant disadvantage when compared to the Award. I required an undertaking which addressed this problem.

[12] I am satisfied that even though there are a number of undertakings, taken as a whole the undertakings do not result in substantial changes to the Agreement.

[13] The issue of whether the undertaking is likely to cause financial detriment to any employee was the subject of submissions during the hearing. The part of the undertaking in respect to public holidays and travelling time is likely to lead to financial benefit to employees. I am satisfied that the part of the undertaking which limits the proportion of work on weekends and the level of overtime which can be worked by salaried employees is not likely to lead to financial detriment to any employee. The Agreement prevents non-salaried employees from being required to work rosters which exceed these limits. The rosters provided show that employees do not generally work rosters which exceed these limits. It is reasonable to assume that when employees considered the Agreement they expected that it would ensure that they were Better Off Overall when compared to the Award. Certainly this is what the employer told them. The undertakings clarify the operation of the rostering clauses to ensure that this is the case. Overall I am satisfied that the undertaking is not likely to lead to any employee being worse off financially.

[14] I have ensured that the bargaining representatives have been consulted about the undertakings and I have considered their submissions.

[15] The undertakings now form part of the Agreement and are kept on the file. A copy of the undertakings should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.
[16] The undertakings which now form part of the Agreement are attached.

[17] 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. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[18] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 October 2015. The nominal expiry date of the Agreement is 22 October 2019.

COMMISSIONER

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