Sai Om Property Holdings Pty Ltd

[2016] FWCA 9238

[2016] FWCA 9238

FAIR WORK COMMISSION

DECISION

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

Sai Om Property Holdings Pty Ltd
(AG2016/7349)

ZARRAFFAS COFFEE PACIFIC FAIR ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 23 DECEMBER 2016

Application for approval of the Zarraffas Coffee Pacific Fair Enterprise Bargaining Agreement 2016 - 2020.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Walk Industrial Services Pty Ltd on behalf of Sai Om Property Holdings 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 Zarraffas Coffee Pacific Fair Enterprise Bargaining Agreement 2016 - 2020 (the ‘Agreement’). The Agreement was negotiated with Ms J Pocock, a nominated employee bargaining representative (EBR) and is to cover all 9 employees who are engaged at the applicant’s café in Molendinar, Queensland. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 15 October 2016, and voting for the Agreement’s approval took place on 7 and 28 November 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 November 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr H Keniya, 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 Keniyasaid the Agreement provides for rates of pay which are 8% higher than the reference instrument. He also said that the Agreement provides for no terms which are less beneficial. This is not strictly correct, as the Agreement does not provide for penalty rates on weekends. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 14 respectively, and a disputes resolution procedure at clause 15 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 2 December 2016, Mr Law, Solicitor,appeared for the applicant. Mr Law 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. Mr Law submitted that the enterprise rosters employees by providing sufficient hours during weekdays to ensure they are ‘better off overall’. He also submitted that the applicant would be willing to provide an undertaking to the effect that employees would be paid more than what they would otherwise receive under the relevant Award. A copy of this undertaking was provided to my Chambers on 14 December 2016. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. In these circumstances, I am satisfied that the Agreement passes the BOOT.

[5] Having heard 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 ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Zarraffas Coffee Pacific Fair Enterprise Bargaining Agreement 2016 – 2020.Pursuant to s 54 of the Act, the Agreement shall operate from 30 December 2016 and have a nominal expiry date of 23 December 2020.

DEPUTY PRESIDENT

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