Action Industrial Catering Pty Ltd

[2014] FWCA 3488

[2014] FWCA 3488

FAIR WORK COMMISSION

DECISION

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

Action Industrial Catering Pty Ltd
(AG2014/1165)

ACTION INDUSTRIAL CATERING CONSTRUCTION ENTERPRISE BARGAINING AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 MAY 2014

Application for approval of the Action Industrial Catering Construction Enterprise Bargaining Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Action Industrial Catering Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Action Industrial Catering Construction Enterprise Bargaining Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Mr D Waite. The Agreement is to cover 21 employees who are engaged in various positions at the applicant’s Northern Link Camp in Western Australia. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 11 February 2014, and voting for the Agreement’s approval commenced on 29 April 2014 and concluded on 7 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the 19 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms N Brown, HR Advisor, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Industrial Catering Workers’ Award, 1977 [AN160179] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Brownsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, additional allowances such as Location and Site Allowances, Project Incentive Payment (PIP) Allowance, enhanced redundancy and severance entitlements, and mobilization and demobilization benefits, including paid travel time. Rates of pay are to be adjusted by 2.5% in April and October of every year during the operation of the agreement, and the first increase applied from 1 April 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 3.4.2 and 5.5 respectively, and a disputes resolution procedure at clause 10.0 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 26 May 2014, Ms N Brown appeared for the applicant and in her capacity as an Employer Bargaining Representative, along with Mr D Chibale, HR Consultant and Mr D Waite, who appeared in his capacity as an Employee Bargaining Representative. Ms Brown outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Mr Waite supported the submissions of Ms Brown and said that the employees were happy with the Agreement.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Action Industrial Catering Construction Enterprise Bargaining Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 2 June 2014 and have a nominal expiry date of 1 June 2018.

DEPUTY PRESIDENT

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