Delish Corp Pty Ltd

[2016] FWCA 1571

[2016] FWCA 1571

DECISION

Fair Work Act 2009

s 185 - Application for approval of a single-enterprise agreement

Delish Corp Pty Ltd

(AG2016/165)

DELISH CORP PTY LTD ENTERPRISE BARGAINING AGREEMENT

2016-2020

Restaurants

DEPUTY PRESIDENT SAMS SYDNEY, 11 MARCH 2016

Application for approval of the Delish Corp Pty Ltd Enterprise Bargaining Agreement 2016-

2020.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed

by Delish Corp 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 Delish

Corp Pty Ltd Enterprise Bargaining Agreement 2016-2020 (the ‘Agreement’). The

Agreement was negotiated with Ms A Hunter, an Employee Bargaining Representative (EBR)

and is to cover 13 employees who are employed at the applicant’s restaurant in Victoria Point,

Queensland.

[2]        The employees were last notified of their representational rights on 21 September

2015 and voting for the Agreement’s approval took place on 18 and 19 January 2016. The

time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s

approval, all 12 of the employees who cast a valid vote, agreed to approve the Agreement.

The application for approval of the Agreement was lodged on 29 January 2016, thereby

satisfying s 185(3) of the Act.

[3]        In the Employer’s Declaration in support of the application (Form F17) Ms G Zhang,

Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant
[2016] FWCA 1571

reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Zhang

said that the Agreement provides for a higher rates of pay, than contained in of the Award and

that there are no less beneficial terms. However, this is not strictly correct, as the Agreement

does not provide for penalty rates for work performed on weekends and public holidays and

these have been ‘loaded’ into higher rates of pay. I am satisfied that the Agreement passes the

BOOT. The Agreement provides for the mandatory flexibility and consultation terms at

clauses 6 and 14 respectively, and a disputes resolution procedure at clause 15 provides for

conciliation and arbitration by the Commission.

[4]        At a hearing of the application on 9 March 2016, Mr K Law of Walk Industrial

Services Pty Ltd, appeared with Ms G Zhang for the applicant and Ms A Hunter appeared in

her capacity as EBR. Mr Law 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 rates of pay are 7%

higher than those under the Award and are to be adjusted with reference to the Commission’s

Minimum Wage Review Decisions during the Agreement’s nominal term. This means that the

Agreement’s rates of pay would always be 7% higher than those under the Award. He also

provided the Commission with a copy of the Agreement amending some typographical errors

in the name of the employer. Ms Hunter indicated that she was happy with the Agreement.

[2016] FWCA 1571

[5]        Having heard the parties’ 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 Delish Corp Pty Ltd Enterprise Bargaining Agreement 2016-2020. Pursuant to s 54 of the

Act, the Agreement shall operate from 16 March 2016 and have a nominal expiry date of 15

March 2020.

DEPUTY PRESIDENT

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