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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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Poldaap Holdings Pty Ltd, trading as Forestway Fresh, for the approval of the Forestway Group Enterprise Agreement 2016. The application was contested by various unions, including the Shop, Distributive and Allied Employees Association. The primary dispute centred around the terms and conditions outlined in the proposed enterprise agreement, specifically whether it complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the enterprise agreement was appropriately made under the provisions of the Fair Work Act, whether it met the criteria for 'better off overall or in the round' (BOOT), and whether the process for making the agreement was fair and lawful. Additionally, the Commission had to consider whether the agreement was in accordance with the relevant industrial instruments and if it provided for proper pay and conditions for the employees.

In its decision, the Fair Work Commission examined the evidence presented by both parties, including the submissions from the unions and the employer. The Commission concluded that the application for approval of the Forestway Group Enterprise Agreement 2016 did not meet the statutory requirements. It was found that the agreement did not adequately ensure that employees were not worse off financially and did not provide proper protections and conditions as required by the Fair Work Act. Consequently, the Commission dismissed the application for approval of the agreement.

The Commission’s decision emphasised the importance of ensuring that enterprise agreements provide fair and reasonable terms for employees and comply with the legislative framework. The dismissal of the application underscores the need for any enterprise agreement to meet the stringent criteria set out by the Fair Work Act to be approved by the Commission.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established