Ambrosia (Qld) Pty Ltd Trading as Ambrosia at Albany v Australian Liquor Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees [1997] QIRC 41 (1997) 157 QGIG 708

708 QUEE~SLAND GOYERNMEKT INDUSTRIAL GAZETTE 28 February, 1997 ########################################################## QUEENS! A"ll) IND! ;srnJAI. REI .ATIONS COMMiSSIOr-; !nduszr:al Re!a1ion., A, t 1990 s ! 78 - apphcat1on for enterprise tlcxib1ltty agreement Amhrosia 1Q!d1 Pty l ,td Trading as Ambrosia at Alhan1 AND Australian Liquor. Hospitality and M1sccllaneous Wurke,s Uuion, Queensland Branch, Union of Employees {No !:Fl of 1997) Al\fRROSIA AT ALRANY ENTERPRISE FLEXIBILITY A<;REEMENT COMMISSIONER HOLGOl1RE 18 February l 9'i7 Application for approval of cnterpris,· flexibility agrccmerlf Applicat1tm to be ht:aid by Union Union bound b) pa1cnt Awa1d and therefore cntitli:d to be heard Union referred to areas of disadvantage Reference to Hwtts Wharf Seafood - Certified Agreemcn! Reference to wage increa:,c, upon renewal of Ff A l,,m·\ rai,ed bv Commission -- Subject to amendments 10 he made employee-: not di<,adv,mtaged Ag1ee111ent will be co11s1de1cd f111 apprnval DECISION This 1s an application tc approve an Enterpri~e Flexibility Ag1ec111<.·nt (EFA) in respect of empioyees ()f Ambrmia (Qld) Pty Ltd trading a~ A.mbrosia at Albany The crnployc1 co111pa11y ¼a>< 1ep1es<:ntcd hefrne 111c by M\ Y McCormack. general Man-1gcr Ambwsia at Alt.any 1~ a new- n:staurant which commenced tradmi: on 13 December 1996 and its operations wouid otherwise have been 'iilbjt:Ct to tlw C'ak. Rcsiaurant and Catenng Award South Ea'item Division. Ms S. Helhno appeared for the Australi:rn Liqu,lr, Hosp1taht;-- and Miscellaneous Worker., Union. Queensland Branch, Union of Emplovces (A.LHMWU:, and opposed approv.\J of the EFA The ALHMWl: is. h(;und by the Award aforcmcnti,rncd which A¼urd bind~ the employer for work performed at the enterpri:-.e tn question On ihi, ha.,is I heard the submission of Ms Bclhno in opposition to approval. In p'nerai it'm1~. th,~ (,pposition hy M~ Bellino wa:, ha"ed 11pon - Di,advantilgc lo the employee!>: 2. An alleged discrimrnmory pr()vi,ion m clau"e !0.5: and J. That in terms ofs. 180(3) ,)fthe lndustrw! RP!11ru,,;.1 Ar-t J()<.;(I !the Act) the reduction in cmplovmcnt conditions. considered as a whole. 1s against public interest In relation tu disadvantage to employees. my ,mention was dircued to '>e'I eral areas of the EFA by \h Helli no. Firstiy, 1t wa~ ,-,ubrrnt!ed ,hat •..'asua!s employed irrcrulariy would have nn access to pem!111es f.x work on weekends. public holid-1ys or for late work The Agrecm,~nt in,judcs a .. loaded rate" tn compensate for weekend. publir lwlidays and late work penalties. however. the Ag:rt>cmcnl provides that ca-.uah are to be paid the appmpnate base nte plus 20'7,. fhc 20'7, hlading is mtended to compensate ,.:ilsLui" for the casual nature of rhcir employment thu,, it seems to me that no cn111pt~nsatl(ln is prn•,ndcd for the loss of weekend, ruhi ic holiday,; ,;11(1 late work penaltic" Dunng the hearing M,; McCormack stated that the Agreement could be Jrnendcd to pwvidc that casual,, lie paid !he loaded ; ate and not the h:L\C rate 111 ilpprnpnate cases Ms Bellino alsP drew the Crnnrni,,ion', ,mention tn clause 7 2 of the EFA, which !l'ad, as folluv.s· .. 7 .2 W agt> I ncrcas(•s 7.2. ! The base rate', in this Agrcfinent wiil be increased b1 ,r1r, afler the completion of the duration of the Agreement; provide(d) that a iike Agreement i.s cnte1ed intP between Amb10sia (()Id) Pty Ltd and it:-. ,:mployee~ after the .l(h o1 Decernher 1947.' . · The ;1hove cLm\e -,ecm<, to say that crnplo)ccs will only ht: entitled In the ,vagc increase of Ylr if they enter mto a further agreement In my vi,:w tile wording i~ inappropriate, even though it niay not have the :-.111i'>te1 motive attnhuted 10 ,t by Ms Belhno Beanng in mind the pr,.lvt~ions of , I !P ot the Act, the ErA may remain in force aikr iis ,lated period of operation. which cease, on 4 December 1997 It may be appropriate to apply the l•f, wage increase to wage rate, in the event of the continued operation of this EF A after 4 Dccc111l1e1 1997. alternatively it may he appropriatt for the Agreement to provide for wage rates to he mcreascd bv the amount of am i1icreases awarded hy a State Wage Deci~ion during the life of the EFA. This i<. a matter for agreement hetween the employer and employees !t would alsn "ecm to me thai a proportionate incrca~e should also he applied to "loaded rale," Unk,._, there 1s some mechanism in the EFA to increa~e wage Ltks during the .. ,,xtcnded·· life of rhe EfA ,omc di,advantage may nccur. M, McConnack a_e:reed this provision could he amended In reiiltion lo ciaw,e 7 .J. M~ Bellino submitted that employee~ would 1101 1ec~:J\e the armual leave bonu:- for service of le"s than l vea1 In mv ,1cw the i::J·A do,:s provide tor payment oi a pro rata honu<, f~r a penod (;I less than I year and M., McCormack confinncd thi~ to be ;..n lt wa~ also submitted that the EFA rdcrs to the Cafe, Restaurant and Catering Award South-Eastern D1vi~ion. which wa>< replaced as from 11 January I 997 hy the lfospitality Industry .. Restaurant. Catcnng and Allied btablishments Award South-Eastern Division, which latter A ward it j-, -.uhrnitted rnntain,.; beneficial change, In making a dctt·rn1inarion I haw taken chis factor into considcratitin Clause ! 0. 5 .2 ol the EFA read, as follows - "The ()ucen~land Industrial Relation,; Corrnrns,ion ha<, cxclu\ive coverag.: in term, of repwsentation of employees at Ambrn~ia at Albany."'. M~ Bellin,) submlltcd that this clause is discriminatory in that the clause doc~ not permit employees to he represented hy her Union. In my view the ahmc clause i~ not discriminatory in the manner suggested hy M,; Bellino. In any nent clause I 0.5 I ><pecifically provides that the employer has a pulicy 1)f not discriminating against any emph,ye~ irrc~pecti ve of membership of any organisation Clause 10.5.2 i~ probably unncccs:,,arv hut to remove any doubt th,· dauc.;e could merely provide that !he Queen~hnd Indu!,trial Relation~ Commission has jurisdiction in rc~pect of employee\ at Ambrosia at Alhany \is McCormack agreed that such a change could bt- madc and emphasised that d1scnnunation on the basis of umon mcmhers.lnp w.is not intended In her submissions Ms McCormack agreed that certain amendments c,>uld he made to the Agreement to deal with i!,',Ue" wised by Ms Bcllinci Ms McCormack emphasised that the Ambrosia EFA wa~ based almo~t entirely on the Brctts Wharf Seafood -- Certified Agreement I I l 5 QGIG I 07'\) and that condititm, of employment at Ambrosia arc comparable to rhe 81e1ts Who.rf Agreement to which the ALH\rlWU wa~ o. signatory. Ms McC01mack indicated that she wa~ at a lo:-.s to unde1sta11d why the Union 28 February, 1997 QUEENSLAND GOYERNMEYf INDCSTRIAL GAZETTE wa, oppnsing her Agreement when it agreed 10 the conditions in the Hretts Wharf Certified Agreement. It is true that the Aml)fosia EFA 1s m mo,.i 1e,11ect, identicai iii v,01Jing to the Brem Wharl Certified Agreement. The Hrctls Wharf Cc11ified Agrecmeut was dealt wllh on a consent ba,is therefore the attention ,)f the Commission was nm drawn io varirn1s provisions of it, in the manner whk:h has hcen done in the case of the Ambrosia EFA In the case of the Ambrosia EFA oppo~ition has been rai,ed hy 1he Union to certain prnvisi,)n:,, and l have to make an ::tppropriate determination reg:irdle,s of the provision, of the 13rctts Wharf Agreement A,, I have already indicated, during the lwanng M-, \kCormack has a)!recd to various amendments which largely. if not totally. neutrnlised the s11hmi,sions of Ms Bellino In addit10n to matters raised by Ms Bellino. I raised several i;-.sue, myself. Pursuant to clau<.t' 1 I I I, the ~tatm of an employee a, a casual, part-time or full time may he changed. Ms \1cC,mnack said this was onlv by mutual Jgrecmcnl. In my view this is 11ut e11ti1dy elem aml th~ Agreement ~hould s.pecif:caliy proqde for change by mutual agreement. l also rni;;ed the dkcl nl th<' second paragraph of ciau;;e 4. whi,:h read~ a, follows:- "Employees who arc paid $28,(10(1 pet annum or more arc excluded from the operatic,ns of clause~ 7 I, 71, 8.1, 8.3 and 9.4.'' Ms McCormack informed me that there were 2 empioyexs only heing paid in excess of $28.000 per annum. She said they were paid $42,000 and $32,000 respectively per annum. My concern was that such employees were excluded from clauses 8.1 (Hours of Work) and 8.3 (Overtime) and that the provision was entirely open-ended. Even though an identical provision appears in the Brctts Wharf Certified Agreement, I consider some Ii nutation :,,hould apply. Whilst the 2 current employees arc paid well Ill excess of the 1>28,000 per annum figme and Ms McCormack says she ha, agreement with them a~ to the hour, they work, I have some concern about the potential for abu~e of thi~ provision. M:,, McC01rnack ~aid il limit of 50 hours per week could apply. I require inclusion of an appropriate clause to that etfect so that there i~ some !i1111t on the exclusion in quc!stton. I would be prepared to consider whether stm1dard overtime rates or ,omc other rates should apply Pur~ua11t to :,,_ 183(5) of the Act, bcfmc refusing to approve unplementation of an EFA I must give the employer an opportumty to amend the EFA. In my view in this case amendment of the Agreement is appropriate and can satisfactorily resolve issues raised. I require the employer to ,ubmit to me a doeumenr signed 111 the same manner as the EFA by the employer and the rep1esentative~ uf the employees indicating the specific amendments to be made and that a ma.1ority of the employees approve of the amenclrm::nts. Since all amendments arc beneficial to the employees and tht> employer has indi,'ated agreement before me there would seem to be no reason to anticipate any lack of approval. Su~ject to receipt of a satisfactory document as aforementioned, I will be satisfied that there is no disadvantage to employee~ in rebtion to their employment conditions in that in the context of their employment conditions when considered as a whole, any reduction in their entitlement or award protection is not against the public interest ljpon receipt of a satisfactory document as aforementioned, I will consider apprnvaJ of implemenlation of the EF A without further hearing. The Commission orders accordingly. R.W. BOUGOURE, Commissioner. Appearam·es:- Ms Y. McConnack for the applicant. Ms S. Bellino for the Auqralian Liquor, Ho\pitality and Misccllaneou, Workers Lrnon, Queensland Branch. Union t1f Employees. Operative Date N/A Decision Ambrosia at Albany Entcrpri~e Flcxihiiity Agreement Released 18 Fehruar1 1997 709 -- 1 of 1 --