AZ-NSW Pty Limited

[2014] FWCA 4483

[2014] FWCA 4483

FAIR WORK COMMISSION

DECISION

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

AZ-NSW Pty Limited
(AG2014/6480)

AZURA FRESH ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2014

Application for approval of the Azura Fresh Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by AZ-NSW Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Azura Fresh Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 103 employees who are engaged in the receiving, preparation, filing, assembly, packaging and distribution of fresh catering products at the applicant’s factory in Sydney known as AZ-NSW Pty Limited and in Brisbane known as AZ-QLD Pty Limited. 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 28 April 2014, and voting for the Agreement’s approval took place on 4 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by show of hands, 78 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 June 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr F Agius, Industrial Relations Practitioner for the applicant identified the Hospitality Industry (General) Award 2010 [MA000009], Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South Eastern Division 2002 [AN140144] and Caterers Employees (State) Award [AN120106] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Agius said 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, including a higher rate of pay and higher night shift loading, and that the Agreement contains one condition which is less beneficial than under the reference instruments, being no provision to convert from casual to full time or part time employment. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.6.1 and 1.8.1 respectively, and a dispute resolution procedure at clause 1.7.1 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 3 July 2014, Mr Agius,appeared with Mr N Saber, Operations Manager,for the applicant. Mr Agius 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.

[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 Azura Fresh Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 10 July 2014 and have a nominal expiry date of 1 June 2018.

DEPUTY PRESIDENT

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