DECISION

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

NETEAST Technology Australia Pty Ltd T/A Spoon East Brisbane
(AG2015/3477)

NETEAST TECHNOLOGY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 AUGUST 2015

Application for approval of the NETEAST Technology Australia Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by NETEAST Technology Australia Pty Ltd t/as Spoon East Brisbane (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the NETEAST Technology Australia Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 13 employees who are employed at the applicant’s cafe in East Brisbane, Queensland.

[2] The employees were last notified of their representational rights on 29 June 2015, and voting for the Agreement’s approval took place on 24 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 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 31 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr W Chen, Director identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Chen said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including the removal of penalty rates for work performed on weekends and public holidays and a number of allowances. However, these have been loaded into higher rates of pay 9.5% higher than those under the Award. 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 7 August 2015, Mr D D’Arcy appeared with Mr W Chen 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 cafe operates exclusively in daylight hours and that the applicant had determined, through the analysis of indicative rosters, that the employees were better off overall by being covered by the Agreement.

[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 NETEAST Technology Australia Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 14 August 2015 and have a nominal expiry date of 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, NETEAST Technology Australia Pty Ltd trading as Spoon East Brisbane, applied for approval of the NETEAST Technology Australia Pty Ltd Enterprise Agreement 2015. The respondent, the Retail and Fast Food Workers Union of Australia, did not oppose the application, but did object to certain terms of the agreement. The primary issue for the Commission was whether the agreement met the requirements for approval under the Fair Work Act 2009.

The Commission considered whether the agreement contained all the mandatory terms set out in section 235 of the Fair Work Act, and whether it was made in good faith and not under duress or coercion. The Commission also examined whether the agreement was likely to achieve a fair and efficient workplace and whether it was consistent with the Fair Work (Registered Organisations) Act 2009. The Commission found that the agreement met all of these requirements and was therefore approved.

The agreement provides for a range of terms and conditions of employment, including wages, leave entitlements, and dispute resolution mechanisms. The Commission noted that the agreement provided for a fair and efficient workplace, with appropriate safeguards for employees. The Commission also noted that the agreement was made in good faith and was not the result of any duress or coercion. The Commission approved the agreement and made an order that it be registered under the Fair Work Act.

This decision is an important reminder for employers of the importance of ensuring that any enterprise agreements they enter into meet the requirements for approval under the Fair Work Act. Employers should take care to ensure that any agreements are made in good faith and are consistent with the law. Failure to do so may result in the agreement being refused registration by the Commission.

NETEAST Technology Australia Pty Ltd T/A Spoon East Brisbane

DECISION

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