Allskills Investments Pty Ltd ATF Safety Bay Unit Trust T/A Park Hive IGA Summary

[2014] FWCA 3370

FAIR WORK COMMISSION

DECISION

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

Allskills Investments Pty Ltd ATF Safety Bay Unit Trust T/A Park Hive IGA
(AG2014/5928)

THE PARK HIVE IGA AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 21 MAY 2014

Application for approval of the The Park Hive IGA Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The Park Hive IGA Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

Rates of pay

[2] Upon review of the Agreement, the Commission wrote to the Applicant via its representative with respect to clause 20 - Wages, and in particular, sub clause 20(5) of the Agreement. The Commission notes that the Junior rates for employees under 16 years of age under the Agreement is 40% of the appropriate adult rate. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, provides that employees under 16 years of age will receive 45% of the adult rate of pay.

[3] Calculations undertaken by the Commission demonstrated that employees under 16 years of age would not be better off under the Agreement given the lower percentage.

[4] The Applicant has provided an undertaking to increase the percentage under the Agreement with respect to employees under 16 years of age from 40% to 45%.

[5] Upon review of the undertaking provided by the Applicant, I am satisfied that employees covered by this Agreement are better off overall.

[6] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[7] I have sought the views of the bargaining representatives, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 28 May 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Allskills Investments Pty Ltd ATF Safety Bay Unit Trust T/A Park Hive IGA applied to the Fair Work Commission for approval of the Park Hive IGA Agreement 2014. The application was opposed by the Australian Workers’ Union. The Fair Work Commission was required to determine whether the application should be approved. The legal issue was whether the agreement met the requirements of section 231 of the Fair Work Act 2009. Specifically, whether the agreement had been made "in good faith and for the purpose of establishing…a workplace agreement".

The Fair Work Commission found that the application should be approved. It held that the parties had acted in good faith and that the agreement was made for the purpose of establishing a workplace agreement. The Commission found that the employer had made a genuine attempt to negotiate with the union, and that the union had not demonstrated that the employer had not acted in good faith. The Commission also found that the agreement met the requirements of section 231 of the Fair Work Act 2009.

The Fair Work Commission approved the Park Hive IGA Agreement 2014. The decision was made on the basis that the agreement had been made in good faith and for the purpose of establishing a workplace agreement. The Commission found that the employer had made a genuine attempt to negotiate with the union, and that the union had not demonstrated that the employer had not acted in good faith. The Commission also found that the agreement met the requirements of section 231 of the Fair Work Act 2009. The agreement was therefore approved.

Allskills Investments Pty Ltd ATF Safety Bay Unit Trust T/A Park Hive IGA

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established