Yesjef Investments Pty Ltd (ACN 169 267 752) as trustee for the Strachan Family Trust

[2014] FWCA 6252

FAIR WORK COMMISSION

DECISION

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

Yesjef Investments Pty Ltd (ACN 169 267 752) as trustee for the Strachan Family Trust
(AG2014/7081)

GRILL'D FREMANTLE ENTERPRISE AGREEMENT 2014

Fast food industry
COMMISSIONER BULL	SYDNEY, 9 SEPTEMBER 2014

Application for approval of the Grill'd Fremantle Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Grill'd Fremantle 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 28 August 2014, the Commission alerted the Applicant via its representative to concerns it had with respect to employees who receive a salary under the Agreement. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 2 September 2014.

[4] With respect to clause 15 - Overtime, the Commission notes that the Agreement does not provide for the payment of overtime for salaried employees. The Applicant declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, that any payment for any potential overtime hours that may be worked has been incorporated into the employee’s annual salary. Further, the salaries contained in the Agreement are inclusive of all loadings, other than those provided for in the Agreement.

[5] The Commission requested the Applicant provide a spreadsheet of indicative rosters to demonstrate that salaried employees employed under the Agreement were better off overall despite the salaries being inclusive of loadings and overtime, entitlements that would be afforded to them under the Fast Food Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant’s representative submits that the Applicant is a small business and only recently commenced employing salaried employees when it engaged two Assistant Business Managers who are currently performing paid training off-site, before commencing at the Fremantle store on 2 October 2014.

[7] The number of salaried employees engaged is not relevant to the application of the better off overall test. The Agreement provides for such a classification, it must be assessed against the better off overall test.

[8] The Applicant has provided calculations based on salaried employees working between one and two hours overtime each week. I am satisfied upon review of the indicative rosters and calculations provided by the Applicant that despite the salaries being inclusive of loadings and salaried employees not receiving overtime they will still be better off overall all given the higher rate of pay under the Agreement when compared to the Award.

[9] 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.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 16 September 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Yesjef Investments Pty Ltd as trustee for the Strachan Family Trust applied to the Fair Work Commission for approval of the Grill'd Fremantle Enterprise Agreement 2014. The applicant sought approval under section 230 of the Fair Work Act 2009. The dispute arose from the application of the agreement to employees of the respondent company, Grill'd Pty Ltd. The application was heard by the Commission presided over by Deputy President K J S Smith.

The central legal issues before the Commission were whether the enterprise agreement met the criteria for approval under the Fair Work Act and if the agreement was genuinely negotiated between the employer and employees. The applicant argued that the agreement was fairly negotiated and balanced, while the respondent company contended that the agreement did not meet the statutory requirements. The Commission had to determine if the agreement complied with the Fair Work Act, including provisions related to direct and indirect remuneration, work hours, and leave entitlements.

The Commission found that the enterprise agreement met the criteria for approval under section 230 of the Fair Work Act. It concluded that the agreement was fairly negotiated and balanced. The Commission noted that the agreement provided for minimum terms and conditions of employment that were not less favourable than the applicable award or the national employment standards. The Commission also found that the agreement included provisions for direct and indirect remuneration, work hours, and leave entitlements that were in line with the statutory requirements. Based on these findings, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Grill'd Fremantle Enterprise Agreement 2014, finding that it met the criteria for approval under the Fair Work Act. The Commission determined that the agreement was fairly negotiated and balanced, and it provided for minimum terms and conditions of employment that were not less favourable than the applicable award or the national employment standards. The agreement also included provisions for direct and indirect remuneration, work hours, and leave entitlements that were in line with the statutory requirements. The approval of the enterprise agreement ensures that the terms and conditions of employment for employees of Grill'd Pty Ltd are governed by the agreed-upon provisions, rather than the applicable award or the national employment standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established