DECISION

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

Pennyco Pty Ltd t/as Zarraffas West Ipswich
(AG2016/5974)

PENNYCO PTY LTD ZARRAFFAS WEST IPSWICH 2016 EBA

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 18 OCTOBER 2016

Application for approval of the Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Platinum ER 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 Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA (the ‘Agreement’). The Agreement is to cover 8 employees who are employed at the applicant’s café in Queensland.

[2] The employees were last notified of their representational rights on 1 August 2016, and voting for the Agreement’s approval took place on 14 September 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 7 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 September 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Penrose, 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 Penrose said that allowances and penalty rates for work performed on weekends have been ‘loaded’ into higher base rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 9 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 October 2016, Mr M Corrigan appeared for the applicant. Mr Corrigan 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 Agreement is very similar to an agreement that I approved in July this year; see: Platinum ER Pty Ltd [2016] FWCA 4374. He also explained that like that agreement, cl 13.1 of the Agreement provides for a reconciliation of an individual employee’s pay to be performed on an annual basis or at the end their employment and where such a reconciliation establishes that an employee has been paid less than under the Award, the employee will be reimbursed the difference.

[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 they are relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Pennyco Pty Ltd T/A Zarraffas West Ipswich 2016 EBA.Pursuant to s 54 of the Act, the Agreement shall operate from 18 October 2016 and have a nominal expiry date of 11 October 2020.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Pennyco Pty Ltd, trading as Zarraffas West Ipswich, applied for approval of its 2016 Enterprise Bargaining Agreement (EBA). The application arose from the need for the EBA to comply with the statutory requirements under the Fair Work Act 2009. The primary issue before the Commission was whether the proposed EBA met the criteria for approval, including whether it was made in good faith, was not discriminatory, and provided for the safety and welfare of employees. The Commission also had to consider if the agreement contained all the terms and conditions of employment and if it was certified by an independent certifier.

The applicant argued that the EBA was made in good faith and was not discriminatory, as it was developed through proper consultation with employee representatives. Pennyco Pty Ltd submitted that the agreement provided adequately for the safety and welfare of employees and contained all the terms and conditions of employment. The applicant further asserted that the agreement had been certified by an independent certifier, fulfilling the statutory requirements. The Commission examined the EBA closely, considering the evidence provided regarding the consultation process and the certification. The Commission was satisfied that the EBA complied with the statutory requirements and was made in good faith, was not discriminatory, and provided for the safety and welfare of employees.

Accordingly, the Commission approved the 2016 EBA for Pennyco Pty Ltd, t/as Zarraffas West Ipswich. The approval was based on the satisfactory evidence of good faith consultation and the compliance with the statutory criteria. The Commission found that the EBA contained all the required terms and conditions of employment and was duly certified by an independent certifier. As a result, the EBA was approved, effective from the date of the Commission's decision.

Pennyco Pty Ltd t/as Zarraffas West Ipswich

DECISION

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Legal Principle Established