Amrit Pty Ltd ATF Perminder Family Trust t/as Toscani's Loganholme

[2015] FWCA 5015

[2015] FWCA 5015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Amrit Pty Ltd ATF Perminder Family Trust t/as Toscani's Loganholme
(AG2015/3327)

TOSCANI'S LOGANHOLME ENTERPRISE BARGAINING AGREEMENT 2012 - 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 28 JULY 2015

Application for variation of the Toscani's Loganholme Enterprise Bargaining Agreement 2012 - 2016.

[1] An application has been made by Amrit Pty Ltd ATF Perminder Family Trust t/as Toscani’s Loganholme (the ‘applicant’) pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for approval of a variation to a single enterprise agreement known as Toscani’s Loganholme Enterprise Bargaining Agreement 2012 - 2016 (the ‘Agreement’), which was approved by Commissioner Cribb on 17 February 2012; See: Amrit Pty Ltd ATF Perminder Family Trust T/A Toscani’s Loganholme [2012] FWAA 1397. The Agreement currently covers 16 employees at the applicant’s restaurant in Shailer Park, Queensland. The effect of the variations sought is to amend the identity of the employer covered by the Agreement to remove the reference to ‘T/A Toscani’s Loganholme’ and to remove the same from the title of the Agreement. The text of the Agreement has also been altered to incorporate undertakings that were added to the Agreement pursuant to s 191(1) of the Act when approved by Commissioner Cribb.

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr P Thind, Director advised that a notice was provided to all employees as to the proposed changes on 27 June 2015 and that this was further explained verbally by Mr Thind to the employees on 4 July 2015. At a vote taken by a nominated staff representative, all 16 of the employees agreed to approve the proposed variations (ss 207, 208, 209). I am satisfied that the employees have genuinely agreed to the variations of the Agreement (ss 211(3)(c) 188). The application was lodged on 15 July 2015, thus satisfying s 210(3)(a) of the Act.

[3] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[4] Having reviewed the pre-approval process documentation and the proposed variation, I am satisfied that all of the requirements of the Act, in particular ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied there are no public interest grounds (let alone serious ones) for not approving the variation. Accordingly, I approve the proposed variations to the Toscani’s Loganholme Bargaining Agreement 2012 – 2016, now known as the Amrit Pty Ltd Enterprise Bargaining Agreement 2012 – 2016. Pursuant to s 216 of the Act, the variation shall take effect on 28 July 2015 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE891727  PR569730>