AZ-NSW Pty Limited

[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

Printed by authority of the Commonwealth Government Printer

Price code G, AE408935 PR552786

In the matter of Azura Fresh Enterprise Agreement 2014, the parties involved were AZ-NSW Pty Limited and the Australian Manufacturing Workers’ Union. The dispute revolved around the application for approval of the aforementioned enterprise agreement under the Fair Work Act 2009. The case was heard in the Fair Work Commission. The central legal issues that the Commission was required to address involved whether the agreement met the statutory requirements for approval, specifically whether it provided for fair and reasonable terms and conditions, and whether it was made in good faith. Additionally, the Commission needed to consider whether the agreement complied with the procedural requirements of the Act.

The Commission found that the enterprise agreement was made in good faith and provided for fair and reasonable terms and conditions. The Commission considered various factors, including the bargaining process, the parties' conduct, and the content of the agreement. The Commission was satisfied that the agreement was the result of genuine negotiations between the parties and that it contained terms and conditions that were fair and reasonable. The Commission also noted that the agreement provided for certain protections and entitlements for employees, which were considered to be appropriate in the circumstances. The Commission further determined that the agreement complied with the procedural requirements of the Act, including the requirement for the agreement to be in writing and to be signed by authorised representatives of the parties.

Based on the findings, the Commission approved the Azura Fresh Enterprise Agreement 2014. The Commission concluded that the agreement met the statutory requirements for approval and that it provided for fair and reasonable terms and conditions. The Commission also noted that the agreement was made in good faith and complied with the procedural requirements of the Act. The approval of the agreement means that it will now be legally binding on the parties and their employees, and it will provide the framework for the terms and conditions of employment for the employees covered by the agreement.

No further orders were made by the Commission. The approval of the enterprise agreement was the primary outcome of the case. The agreement will now be in effect, and the parties and their employees will be bound by its terms and conditions. The approval of the agreement resolves the dispute between the parties and provides certainty and stability for the employees covered by the agreement.

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