Panbar (Cairns) Pty Ltd ATF the Manthik Trust in partnership with Indorato Enterprises Pty Ltd ATF the Indorato Family Trust T/A Ray White Smithfield Summary

[2013] FWCA 5588

FAIR WORK COMMISSION

DECISION

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

Panbar (Cairns) Pty Ltd ATF the Manthik Trust in partnership with Indorato Enterprises Pty Ltd ATF the Indorato Family Trust T/A Ray White Smithfield
(AG2013/1790)

RAY WHITE SMITHFIELD ENTERPRISE AGREEMENT 2013

Real estate industry
COMMISSIONER BULL	SYDNEY, 12 AUGUST 2013

Application for approval of the Ray White Smithfield Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Ray White Smithfield Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission wrote to the Applicant with respect to clause 54 - Ordinary hours, which provides the ordinary hours of work for clerical employees covered by the Agreement. The ordinary span of hours at subclause 54.2 appeared to have been greater than the span of hours provided for in the Clerks - Private Sector Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test that would cover clerical employees under the Agreement.

[3] The Applicant has advised the Commission that it relies upon subclause 25.1(b) of the Award, that where an employee works in association with other classes of employees who work ordinary hours outside the spread prescribed by the Award, the hours during which ordinary hours may be worked are as prescribed by the modern award applying to the majority of the employees.

[4] The Applicant has advised the Commission that the majority of employees are covered by the Real Estate Industry Award 2010 and that clerical employees who work on a Saturday will be paid 1.25 of the base rate for all hours worked that day. I am satisfied from the response of the Applicant that clerical employees covered by the Agreement will be better off overall.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 August 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Panbar (Cairns) Pty Ltd ATF the Manthik Trust in partnership with Indorato Enterprises Pty Ltd ATF the Indorato Family Trust, trading as Ray White Smithfield, applied for the approval of the Ray White Smithfield Enterprise Agreement 2013. The applicant sought this approval from the Fair Work Commission. The nature of the dispute involved the procedural fairness of the application process and the validity of the proposed enterprise agreement.

The legal issues before the court included whether the applicant had provided sufficient information to demonstrate that the agreement had been made in good faith and whether the application process had been conducted fairly. The court had to determine if the necessary procedural requirements had been met, including the provision of adequate information to relevant employee representatives and the availability of the agreement for inspection by employees. Furthermore, the court needed to assess whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to its content and the process through which it was made.

The court reviewed the evidence and submissions from both parties and found that the application process had been conducted in a procedurally fair manner. The applicant had provided adequate information to relevant employee representatives and had allowed the agreement to be inspected by employees. The court was satisfied that the agreement had been made in good faith and met the requirements of the Fair Work Act 2009. Consequently, the court approved the Ray White Smithfield Enterprise Agreement 2013.

The court's final order was that the Ray White Smithfield Enterprise Agreement 2013 be approved, effective from the date of the decision. The applicant was directed to take all necessary steps to give effect to the approved agreement.

Panbar (Cairns) Pty Ltd ATF the Manthik Trust in partnership with Indorato Enterprises Pty Ltd ATF the Indorato Family Trust T/A Ray White Smithfield

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established