Workplace Express: FWA rebuff for substandard bakery deal
10 August 2010 1:00pm
http://www.workplaceexpress.com.au/
FWA has rejected an agreement for three Bakers Delight stores in Melbourne after finding submissions by employer representative Enterprise Initiatives about the deal’s clauses were “inaccurate, misleading or contradictory”.
Unregistered union Unite, which was the bargaining agent for some employees, welcomed Senior Deputy President Drake’s decision, but said workers continued to be covered by an expired non-union agreement under s170LK of the pre-Work Choices legislation.
It has applied to terminate the agreement, which its secretary, Anthony Main, says contains many of the same disadvantages as the rejected deal.
In her decision, issued on Friday, Senior Deputy President Drake said she had “a number of significant issues” when she initially considered the deal, made during the Fair Work Act’s bridging period.
“These included the purported ‘flexible’ ordinary hours of work, the ‘requirement’ to allocate weekend and public holiday hours fairly and equitably amongst employees, voluntary additional hours and overtime rates, and the average hours of weekend work.”
Senior Deputy President Drake added that she also needed to be assured that the employer – Earthfield Pty Ltd T/A Bakers Delight Diamond Creek, Bakers Delight St Helena & Bakers Delight Laurimar – had complied with the s180(5) obligation to take all reasonable steps to explain the agreement to under-21 employees.
She outlined her concerns in a July 9 letter to Patricia Ryan, practice manager of Enterprise Initiatives subsidiary EI Legal. The letter describes the submission on s180(5) and (6) compliance as “formulaic” and failing to provide any indication of steps taken to inform young employees about the agreement.
It also says workers would be disadvantaged by the ordinary hours of work clause, as those on level one would be $1.10 an hour better off under the award than under the loaded rate under the agreement.
In response, Enterprise Initiatives proffered undertakings on behalf of the employer, but Senior Deputy President Drake declined to rely on them, saying the information had been unreliable and that the further submission about the clauses was “inaccurate, misleading or contradictory”.
When she sought further clarification, no satisfactory explanation was provided.
Examples of inaccurate information included the employer’s claim that employees would work more hours on weekdays than weekends. Some employees, she noted, predominantly worked weekends and were likely to be significantly disadvantaged.
She said that in the light of the employer’s obligation to provide accurate information to the tribunal, “I am not satisfied that the material regarding the changes to the Agreement and the undertakings would be provided to the employees in a reliable manner”. Further, she didn’t have faith that the employer would comply with the undertakings.
Unite says the employer fails to explain deal to young workers
In its 45-page submission, provided to FWA in December last year, Unite says the agreement fails the no disadvantage test.
It adds that the employer failed to meet its obligations under s188(a)(i) and s180(5)(b) by failing to explain the agreement to young employees.
Also, it says, employees didn’t genuinely agree to the deal, as the company had provided misleading information about wage rates.
Unite’s calculations provided to FWA show that employees could be up to 68% worse off under the agreement than under the award, with only four of 19 employees it represented better off.
EI Legal practice manager Patricia Ryan told Workplace Express an appeal was “something our client would consider”.
Bakers Delight Holdings corporate communications manager Kendra Teasdale said the franchisor was awaiting an external legal opinion before providing advice to its franchisee, who operates the three sites.
Unite has set up a Facebook page to supports its Bakers Delight campaign
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