Hanjes Pty Ltd T/A Gelatissimo
[2010] FWA 2837
•26 MAY 2010
[2010] FWA 2837 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
Hanjes Pty Ltd T/A Gelatissimo
(AG2009/20358)
Fast food industry | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 26 MAY 2010 |
Application for approval of the Gelatissimo Coolangatta Employee Enterprise Agreement .
[1] An application has been made for approval of an enterprise agreement known as the Gelatissimo Coolangatta Employee Enterprise Agreement (the Agreement). The application was made pursuant s.185 of the Fair Work Act (the Act). The Agreement is a single-enterprise agreement.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
The No Disadvantage Test
[3] Pursuant to Part 2 of Schedule 7 of the Transitional Act, a no disadvantage test must be applied.
[4] On 19 March 2010 I wrote to the employer in the following terms:
“An application has been received for approval of the Gelatissimo Coolangatta Employee Enterprise Agreement. Fair Work Australia has not been successful in contacting Mr Robert Sharp who lodged this application on your behalf. There are a number of issues to be addressed in order for your Agreement to be considered for approved.
Firstly, I am concerned that clause 13 has the effect of breaching the no disadvantage test. I seek an undertaking that clause 13 will have no effect or operation during the life of the agreement.
Secondly, I seek an undertaking that :-
1. The employer will on request every six (6) months and at least once annually conduct a reconciliation of the amount that the employee would have earned under the Agreement and the amount that the employee would have earned under the award [name the relevant award].
2. If there is a deficiency, the employer will pay that deficiency to the employee within 21 days.
3. If there is a disagreement between the employer and employee that disagreement will be dealt with pursuant to the dispute settlement clause of the agreement [relevant clause number].
4. The same reconciliation will be made when the employment relationship ceases, except that any deficiency will be paid with accrued entitlements.
Thirdly, the statutory declarations contained within Form 18 signed by various employees have not been signed in accordance with the Rules. Replacement statutory declarations are required to be lodged. I have attached a list of people who are authorised to witness the signing of a statutory declaration.
I invite you to provide me with a written submission addressing these issues by 4.00 pm on Wednesday 31 March 2010.
I may dismiss your application if no response is received, or if your written submission does not satisfy me that the requirements of the Act are met.”
[5] A response was received by email on 22 March 2010
“Thank you so much for making contact. I have been sweating on this for ages. People in Small Biz did a dirty on a lot of people. They took there (sic) money and closed shop. You cannot get hold of anyone in that organization. I have a copy of the Agreement. Do you want me to make the changes to the document and submit it to you? Regards, Leonard Mann.”
[6] On 24 March my Chambers referred Mr Mann back to the original letter inviting undertakings or a written submission and properly executed statutory declarations to be provided by 4.00pm on 31 March 2010.
[7] Nothing was received from the employer.
[8] The matter was listed for Hearing on 17 May 2010. To assist the employer, which is based in Coolangatta, a videolink was established between Brisbane and Melbourne. The employer did not attend the hearing nor advise my chambers of any inability to attend.
[9] I dismiss the application.
DEPUTY PRESIDENT
1 Item 2, Part 1, of Schedule 2.
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