BSKT Pty Ltd

[2013] FWCA 4533

FAIR WORK COMMISSION

DECISION

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

BSKT Pty Ltd
(AG2013/1435)

BSKT PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2013

Application for approval of the BSKT Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BSKT Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the BSKT Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 15 employees who are employed at the applicant’s cafe at Mermaid Beach on the Gold Coast in Queensland.

[2] The employees were last notified of their representational rights on 2 May 2013, and voting for the Agreement’s approval took place on 25 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 of the 12 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Selasi Berdie identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Berdiesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of a number of inapplicable allowances and no provision for penalty rates for Saturdays, Sundays and public holidays. However, the Agreement also provides for rates of pay that are between $1.95 and $2.38 higher per hour for permanent employees and between $1.95 and $2.81 higher per hour for casual employees. Rates of pay are due to increase by 2.5% from the first full pay period on or after 1 July 2013. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 5 July 2013, Mr D D’Arcy, Solicitor,appeared for the applicant. Mr D’Arcy 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. He explained that the applicant’s cafe was attached to a yoga studio and operated primarily during the day. He confirmed that an analysis of the rates to the award in respect to penalty rates indicated the BOOT was satisfied.

[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 BSKT Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 12 July 2013 and have a nominal expiry date of 30 June 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

BSKT Pty Ltd, an employer, applied for the approval of the BSKT Pty Ltd Enterprise Agreement 2013. The Fair Work Commission (FWC) was tasked with the responsibility of approving the agreement under the Fair Work Act 2009. The applicants, BSKT Pty Ltd, sought the approval of the agreement which had been negotiated with the trade union, representing the employees. The dispute centred around the terms of the agreement, specifically whether it met the requirements for approval under the Act.

The legal issues that the FWC had to determine included whether the agreement complied with the provisions of the Fair Work Act, particularly sections concerning the procedural fairness, the good faith requirement, and the coverage of the agreement. The FWC also had to consider whether the agreement provided for proper dispute resolution mechanisms and whether it was in the best interests of the employees.

In reaching its decision, the FWC considered the evidence provided by both parties, including the nature of the negotiations, the terms of the agreement, and the compliance with the statutory requirements. The FWC determined that the agreement had been negotiated in good faith and that it complied with the procedural fairness requirements. The FWC found that the agreement provided for adequate dispute resolution mechanisms and that it was in the best interests of the employees. The FWC approved the agreement, finding that it met all the necessary statutory requirements and that it was fair and reasonable.

The FWC approved the BSKT Pty Ltd Enterprise Agreement 2013, thereby enabling the agreement to take effect and govern the employment conditions of the employees covered by the agreement.

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