Poldaap Holdings Pty Ltd atf Domenico Polistina Family Trust t/as Forestway Fresh

[2016] FWC 1909

[2016] FWC 1909

FAIR WORK COMMISSION

DECISION

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

Poldaap Holdings Pty Ltd atf Domenico Polistina Family Trust t/as Forestway Fresh
(AG2016/595)

DEPUTY PRESIDENT SAMS SYDNEY, 29 MARCH 2016

Application for approval of the Forestway Group Enterprise Agreement 2016 – application dismissed.

[1] This is an application by Poldaap Holdings Pty Ltd atf Domenico Polistina Family Trust t/as Forestway Fresh (the ‘applicant’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), seeking the approval of the Fair Work Commission (the ‘Commission’) of a multi-enterprise agreement known as the Forestway Group Enterprise Agreement 2016 (the ‘Agreement’). The proposed enterprise agreement is to cover 35 employees engaged at the applicant’s retail store and cafe in Terry Hills, New South Wales.

[2] Mr P Polistina, Managing Director, filed two Statutory Declarations in support of the approval of the Agreement (Form F17), one which identified the Restaurant Industry Award 2010 [MA000119] as the relevant instrument for the purposes of the Better Off Overall Test (‘BOOT’), the other which identified the Retail Industry Award 2010 [MA000004] for this purpose. While these Statutory Declarations set out that the Agreement provides for higher rates of pay and no less beneficial terms, this is not strictly correct as the Agreement does not provide for penalty rates for work performed on weekends.

[3] At a hearing of the application on 24 March 2016, Mr Polistina appeared for the applicant and Mr F D’Amico appeared in his capacity as a nominated Employee Bargaining Representative. In discussing with Mr Polistina the terms of the Agreement and the method by which the vote for the approval of the Agreement, I informed him that I was not satisfied the Agreement was genuinely agreed to by the employees to be covered by it (ss 186(2)(a), 188) or that its terms and conditions satisfy the BOOT (ss 186(2)(d), 193(1)).

[4] Given these circumstances and without objection from Mr Polistina, the application was dismissed. I confirm my order to dismiss this application.

DEPUTY PRESIDENT

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