Sams Investment Services Pty Ltd T/A Beyond Skin

[2011] FWA 2344

[2011] FWA 2344

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sams Investment Services Pty Ltd T/A Beyond Skin
(AG2011/5163)

DEPUTY PRESIDENT IVES MELBOURNE, 15 APRIL 2011

Beyond Skin Enterprise Agreement 2010 to 2014.

[1] An application has been made for approval of an enterprise agreement known as the Beyond Skin Enterprise Agreement 2010 to 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sams Investment Services Pty Ltd T/A Beyond Skin (the Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement was made on 14 December 2010.

[3] Section 193(1) of the Act relevantly provides as follows:

“193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

...”

[4] An initial assessment indicated that the Agreement did not pass the better off overall test.

[5] In correspondence dated 10 March 2011, the Applicant was advised of this assessment and invited to indicate to Fair Work Australia how it wished to proceed with the application. In email correspondence dated 23 March 2011, the Applicant indicated that an undertaking may be provided with respect to the issues highlighted.

[6] In my view the undertaking would not be sufficient to meet the concerns remaining in relation to the better off overall test.

[7] In addition to these concerns, the application was lodged out of the time period allowed by s.185(3)(a) of the Act. Further, the Agreement is not complicit with the Fair Work Regulations2009. These issues were raised with the Applicant in correspondence dated 28 January 2011 and 10 March 2011. The Applicant did not provide a response in relation to these issues.

[8] The application for approval is refused on the grounds indicated above.

DEPUTY PRESIDENT

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