Wishman Pty Ltd Adidev Group Pty Ltd T/A Cheesecake Shop

[2015] FWCA 1073

[2015] FWCA 1073

The attached document replaces the document previously issued with the above code on 19 February 2015.

i. The original Publication ID AE411853 is incorrect. The correct Publication ID is AE412622 is located at the end of the Decision.

ii. The paragraph numbers of the document have been amended.

Melissa Phang

Associate to Commissioner Bull

Dated19 February 2015.

[2015] FWCA 1073

FAIR WORK COMMISSION

DECISION

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

Wishman Pty Ltd Adidev Group Pty Ltd T/A Cheesecake Shop
(AG2014/10073)

WISHMAN ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 19 FEBRUARY 2015

Application for approval of the Wishman Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Wishman 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 legal representative on 23 December 2014 and 13 February 2015 with respect to concerns it had with the Agreement. The concerns raised by the Commission were with respect to single interest employers, payment of annual leave, meal allowance, and penalties for weekends and public holidays.

[3] Correspondence was received from the applicant on 13 January 2015 and 17 February 2015.

Single interest employers

[4] The Commission notes that the applicant’s F16 lists two employers who are to be covered by the Agreement, and that the application was for a single enterprise agreement. Pursuant to s.172(2) of the Act, the Commission requested the applicant address how two employers may make a single enterprise agreement, and in particular, how the applicant would satisfy the single interest employer test under s.172(5) of the Act.

[5] In reply, the applicant submits that the two employers are engaged in a common enterprise for the purposes of meeting the requirements under s.172(5) of the Act, and provided a number of examples to illustrate this.

Undertakings

Annual leave

[6] Upon request from the Commission, the applicant has provided an undertaking with respect to the payment of annual leave, and in particular sub clause 17.5, that an employee must be paid at least the full time amount that would have been payable to the employee had the employee taken the leave as per s. 93(2) of the Act.

Meal allowance

[7] At the request of the Commission, the applicant has provided an undertaking with respect to clause12 which states that an employee who works in excess of 4 hours overtime on any occasion will be provided with a meal allowance of $11.00.

Penalties

[8] With respect to the Minimum Wage Schedules, and in particular Minimum Wage Schedules B and C, the Commission notes that penalties were lesser on weekends and public holidays when compared with the Fast Food Industry Award 2010 (the Award), being the relevant award for the purposes of the better off overall test. The Commission requested correspondence to demonstrate how employees were better off overall with the lesser penalty rates provided under the Agreement.

[9] The applicant submits that employees are afforded a higher hourly rate of pay which compensates for the lesser penalty rates under the Agreement. The applicant has provided a number of calculations and indicative rosters to demonstrate this.

[10] Additionally, at the request of the Commission, the applicant has also provided an undertaking which states that employees who work more than half their standard hours of work on the weekend (averaged over a 12 week period) shall be paid under the relevant Minimum Wage Schedule A for all hours worked, less any amount that has been paid to the Employee under Minimum Wage Schedule B or Minimum Wage Schedule C. 

[11] The Commission notes that the Minimum Wage Schedule A provides the same shift penalty loadings as the underpinning modern award.

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

[13] 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.

[14] 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.

[15] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 26 February 2015. The nominal expiry date of the Agreement is 4 years from the date of operation.

[16] This decision should be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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<Price code A , AE412622, PR561042>