Platinum ER Pty Ltd T/A Platinum Employee Relations

[2016] FWCA 4374

[2016] FWCA 4374

FAIR WORK COMMISSION

DECISION

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

Platinum ER Pty Ltd T/A Platinum Employee Relations
(AG2016/1141)

HEATHWOOD RETAIL PTY LTD 2016 EBA

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2016

Application for approval of the Heathwood Retail Pty Ltd 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 Heathwood Retail Pty Ltd 2016 EBA (the ‘Agreement’). The Agreement is to cover 6 employees who are employed at the applicant’s coffee shop in Red Hill, Queensland.

[2] The employees were last notified of their representational rights 1 February 2016, and voting for the Agreement’s approval took place on 26 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Kochner, 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 Kochnersaid 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 27 June 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 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 relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Heathwood Retail Pty Ltd 2016 EBA.Pursuant to s 54 of the Act, the Agreement shall operate from 4 July 2016 and have a nominal expiry date of 27 June 2020.

DEPUTY PRESIDENT

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