Pierre Properties Pty Ltd T/A Cactus Jacks and IMC Steakhouse

[2024] FWC 2114

[2024] FWC 2114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pierre Properties Pty Ltd T/A Cactus Jacks and IMC Steakhouse

(AG2024/2641)

DEPUTY PRESIDENT DOBSON BRISBANE, 8 AUGUST 2024

Application for approval of the PIERRE PROPERTIES SINGLE ENTERPRISE AGREEMENT 2024

1. An application has been made for approval of an enterprise agreement known as the Pierre Properties – Single Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Pierre Properties Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. The application was required to be filed within 14 days after it was made on 21 May 2024 in accordance with s.185(3) of the Act. As it was not filed until 15 July 2024, it was filed 55 days after the expiry of the statutory timeframe. The Applicant has provided an explanation that the Applicant’s representative had a serious personal issue to attend to. This is a significant period of time and I am not satisfied that this is an explanation that warrants a significant extension of time.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[2] The Applicant provided an email asserting that some 79 casual employees were given an opportunity to vote on the Agreement. The Applicant asserts that 15 casual employees had timesheets for the day of the ballot but did not provide any information about the remainder of the access period. The Applicant also asserts that 26 casuals lodged a vote on the ballot day. On that basis I found that sixty-four casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that up to twenty-six casual employees could have cast a vote who were not entitled to do so. Whether those twenty-six casual employees voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Had the Agreement not had so many other significant issues, I may have exercised my discretion in accordance with s.188(2) however I do not do so on this occasion.

1. Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. I raised a number of concerns regarding the Better Off Overall Test (BOOT) with the Applicant. I have considered the submissions and undertakings given by the Applicant. Significant concerns remain and I am not satisfied that the Agreement passes the BOOT.

1. The Agreement is incapable of approval for the reasons outlined. The application is dismissed.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

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