Icemisty Pty Ltd

[2014] FWCA 3614

[2014] FWCA 3614

FAIR WORK COMMISSION

DECISION

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

Icemisty Pty Ltd
(AG2014/1157)

ICEMISTY PTY LTD - ENTERPRISE AGREEMENT 2014-2018.

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 MAY 2014

Application for approval of the Icemisty Pty Ltd - Enterprise Agreement 2014-2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Icemisty 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 Icemisty Pty Ltd - Enterprise Agreement 2014-2018 (the ‘Agreement’). The Agreement is to cover 13 employees who are employed at the applicant’s drive through coffee stores, known as Muzz Buzz, located at Malaga and Canning Vale, WA. 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 7 April 2014, and voting for the Agreement’s approval commenced on 8 May 2014 and concluded on 9 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 9 employees unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Sanders, Director, identified the Fast Food Industry Award 2010 [MA000003] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sanders said that the Agreement does provide for a term that is less beneficial than the relevant reference instruments, being that the removal of annual leave loading. However it is factored into the loaded hourly rates. Mr Sanders 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, such as longer minimum engagements for part time employees and an enhanced redundancy provision. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions over the period of operation of the Agreement. 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 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 28 May 2014, Mr C Agnew, Solicitor,appeared with Mr P Sanders, for the applicant. Mr Agnew 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. Mr Agnew said that all staff employed at the location are employed as casuals, with the intention of hiring additional staff on a part time basis.

[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 Icemisty Pty Ltd - Enterprise Agreement 2014-2018. Pursuant to s 54 of the Act, the Agreement shall operate from 4 June 2014 and have a nominal expiry date of 1 April 2018.

DEPUTY PRESIDENT

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