PR957859 PR957859 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LK certification of agreement Boxus Pty Ltd (AG2004/8470) BOXUS PTY LTD CERTIFIED AGREEMENT 2004 Fast food industry COMMISSIONER WHELAN MELBOURNE, 6 MAY 2005 Certification of Division 2 agreement with employees. DECISION [1] This is an application by Boxus Pty Ltd for certification of an Agreement between it and its employees engaged at a Gloria Jeans Coffee Franchise at Caulfield in Victoria. The statutory declaration of Mr Neofytou indicates that there are 12 part-time employees covered by the Agreement. [2] The business operates on six days per week with employees rostered between 7.00 a.m. and 7.30 p.m. on Monday to Friday and between 8.00 a.m. and 5.00 p.m. on Saturdays. The business is located in the Monash University precinct, 85% of the customers are students and most of the staff also. Rostered hours are usually five per shift. Employees work more shifts during term time and less during university holidays and study periods. Staff frequently take annual leave during term breaks. An indicative roster was provided to the Commission. [3] Given the fluctuations in the business which are well understood by the employees I am satisfied that the employees are engaged on reasonably predictable rosters and hours of work. [4] Under the provision of clause 9 and clause 15, the rates of pay provided in clause 11 are intended to compensate employees for all hours worked between 6.00 a.m. and 10.00 p.m., Monday to Saturday and for any public holidays. Clause 15 sets out the roster parameters for the maximum hours an employee may be required to work on a public holiday, on a Saturday or for early morning or evening work. In addition, the rate specified is meant to compensate part-time employees for paid annual leave and sick leave. [5] On the comparative figures provided by the applicant for part-time and full-time employees, given the parameters above, a full-time employee would have an advantage of $1.83 per annum or $0.03 per week under the agreement over the award. A part-time employee would have an advantage of $5.63 per annum or $0.003 per hour. [6] The figures provided are based on an average of 38 hours over 52 weeks worked. It is clear that if a part-time employee takes any unpaid annual leave that they would be disadvantaged by comparison with an employee engaged under the award. [7] The material before the Commission suggests that the employees do take annual leave during term breaks. It is hard to see therefore how the agreement could pass the no disadvantage test. [8] As this issue was not discussed at the hearing I am affording the applicant the opportunity to make further submissions on this issue. The applicant may wish to also put additional submissions with respect to section 170LT(3) of the Workplace Relations Act 1996 in the event that I conclude that the Agreement does not pass the no disadvantage test. BY THE COMMISSION: COMMISSIONER Appearances: C. Thompson with J. Neofytou for Boxus Pty Ltd and M. Hosking , employee representative. Hearing details: 2004. Melbourne: December 12. Printed by authority of the Commonwealth Government Printer <Price code A>