7 - 10 Split Pty Ltd T/A Seven Ten Split
[2010] FWA 4098
•1 JUNE 2010
[2010] FWA 4098 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
7 - 10 Split Pty Ltd T/A Seven Ten Split
(AG2010/9465)
Amusement, events and recreation industry | |
COMMISSIONER CAMBRIDGE | SYDNEY, 1 JUNE 2010 |
Application for approval of the Seven Ten Split Agreement.
[1] An application has been made for approval of an enterprise agreement known as the Seven Ten Split Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 7-10 Split Pty Ltd T/A Seven Ten Split (the Employer). The Agreement is a single-enterprise agreement.
[2] The application was lodged at Sydney on 17 May 2010. The application included a Statutory Declaration of Ang Ly, made on behalf of the Employer and dated 13 May 2010, (the Declaration). The Declaration stated that the Agreement was made on 27 February 2010.
[3] Therefore the application was made some 65 days beyond the 14 day lodgement time limit established by subsection 185 (3) of the Act. Subsection 185 (3) (b) of the Act allows Fair Work Australia (FWA), to extend the lodgement time limit if in all the circumstances FWA considers it fair to do so. Unfortunately in this instance the Declaration contained no information upon which FWA could assess any possible extension of the lodgement time limit.
[4] If the lodgement time limit issue was the only deficiency with the application, FWA may have contemplated formal proceedings to allow the applicant to adduce evidence about any explanation for the delay in the lodgement of the application. Unfortunately however there were various other important deficiencies with the application.
[5] Point 2.3 of the Declaration erroneously recorded that a Scope Order had been issued in relation to the Agreement. In this regard the Declaration incorrectly referred to a Decision of FWA involving the refusal of an earlier application for approval of an enterprise agreement made by the Employer.
[6] Point 3.1 of the Declaration incorrectly referred to the relevant Modern Award to be the AWU Tenpin Bowling Industry Award 2003. It is important to note that for the purposes of the better off overall test the relevant Modern Award is the Amusement, Events and Recreation Award 2010 (MA 000080). Consequently the Agreement must pass the better off overall test when assessed against the relevant Modern Award (MA 000080) rather than any no disadvantage test made against the AWU Tenpin Bowling Industry Award 2003. Consequently the application has fundamentally misconstrued the appropriate assessment that the Agreement must satisfy in order to be approved.
[7] In this respect and so as to hopefully assist the Employer, I direct the Employer's attention to the Decision of FWA made by Commissioner Lewin on 30 March 2010 [PR995562], approving the Caboolture Bowl Enterprise Agreement subject to the 8 identified Undertakings provided in that matter.
[8] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application must be dismissed.
COMMISSIONER
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