Aum Sai Divine Pty Ltd T/A Mad Mex Castle Towers

[2014] FWCA 6004

[2014] FWCA 6004

FAIR WORK COMMISSION

DECISION

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

Aum Sai Divine Pty Ltd T/A Mad Mex Castle Towers
(AG2014/6605)

AUM SAI DIVINE PTY LTD ENTERPRISE AGREEMENT

Fast food industry
COMMISSIONER BULL	SYDNEY, 1 SEPTEMBER 2014

Application for approval of the Aum Sai Divine Pty Ltd Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Aum Sai Divine Pty Ltd Enterprise Agreement (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.

[2] The Commission wrote to the Applicant via its representative, the National Retail Association, in relation to concerns it had with the Agreement. In particular, the concerns related to the nominal expiry date of the Agreement and the rates of pay. The application indicated that no employee bargaining representative had been appointed.

Nominal expiry date

[3] The Agreement’s nominal expiry date is 30 June 2014.

[4] The Commission notes that the Agreement application was made on 25 June 2014, and filed with the Commission on 30 June 2014; the same day the Agreement would have passed its nominal expiry date.

[5] The Commission wrote to the Applicant to request an explanation with respect to the nominal expiry date and what was told to the employees during the negotiation stage of the Agreement.

[6] The Applicant’s owner, Mr Manish Agrawl has advised the NRA, that in meeting with employees, Mr Agrawl went through the Agreement and explained all the provisions and the employees were given the opportunity to ask any questions they may have had during the meeting.

[7] Pursuant to s.188(c) of the Act in approving an enterprise agreement the Commission must be satisfied that there are no reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees’. Mr Agrawl has advised the NRA that all employees were advised of the nominal expiry date which has now expired and that no employees asked any questions about the nominal expiry date. I note that of the 19 employees covered by the Agreement, of which 15 employees cast a valid vote, 15 voted to approve the Agreement.

[8] Based on these submissions the Commission is satisfied that employees were informed of the short nominal expiry date of the Agreement and they genuinely agreed to the Agreement pursuant to s.188 of the Act. 1

Rates of pay

[9] The Commission advised the Applicant and the NRA that based on modelling undertaken by the Commission some rates of pay for casual employees would fall below the transitional rate of pay under the relevant award. The Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, states that the relevant modern award for the purpose of the better off overall test is the Fast Food Industry Award 2010 and as the Award contains transitional provisions, the Sop Employees (State) Award is the relevant award based transitional instrument.

[10] The NRA has advised the Commission that as the business is a constitutional corporation formed after 26 March 2006, the applicable casual loading is 23%. When this loading is applied the Agreement rates of pay result in the employees being better off overall.

[11] Based on the correspondence from the NRA, I am satisfied that employees under the Agreement are better off overall.

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

[13] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 2 September 2014. The nominal expiry date of the Agreement is 30 June 2014.

[14] This decision is to be brought to the attention of the employees.

COMMISSIONER

 1   See my comments on nominal expiry date in [2014] FWCA 5051 at 19.

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