SRS Pty Ltd

[2014] FWCA 272

[2014] FWCA 272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SRS Pty Ltd
(AG2013/10032)

SOMERVILLE RETAIL SERVICES ENTERPRISE AGREEMENT 2013

Meat Industry
COMMISSIONER LEWIN	MELBOURNE, 10 JANUARY 2014

Application for approval of the Somerville Retail Services Enterprise Agreement 2013 ACN: 083165422.

[1] An application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of an Enterprise Agreement known as the Application for approval of the Somerville Retail Services Enterprise Agreement 2013 (the Agreement). It has been made by Somerville Retail Services Pty Ltd (SRS). The Agreement is a single Enterprise Agreement.

[2] The application for approval of this Agreement was filed by Ms Chiara Soccio, Human Resource Manager at SRS, on 8 November 2013.

[3] On reading the Agreement, I became concerned that the Agreement may not meet the Better Off Overall Test (BOOT) prescribed by s.193 of the Fair Work Act 2009 (the Act). Accordingly, I submitted the Agreement for analysis by the Enterprise Agreement Unit at the Fair Work Commission and a report was produced. A copy of that report was provided to the Applicant and the Bargaining Representative. In response the Applicant proposed written undertakings in order to ensure that the Agreement may be approved pursuant to s190 (2) of the Act. There followed considerable correspondence and communication concerning the approval of the Agreement.

[4] In the Application, the Applicant identified the Meat Industry Award 2010 as the reference instrument for the purposes of the BOOT. That Award covers three types of establishments. Namely, Meat Manufacturing Establishment, Meat Retail Establishment and Meat Processing Establishment. The Applicant maintained that its establishment is Meat Retail Establishment. However, subsequent to the Application the County Court of Victoria was required to consider the proper characterisation of the employer’s business in VWA v Somerville Retail Services Pty Ltd [2010] VC 0181. Ginnane J determined that the proper characterisation of the employer’s business was of the meat manufacturing undertaking.

[5] The BOOT has been carried out on both bases. The parties were provided with the reports respectively.

[6] The Applicant has provided written Undertakings. A copy of the Undertakings is attached in Annexure A. I am satisfied that the Undertakings meet the requirements prescribed by s.190 (3) of the Act.

[7] Having regard to the undertakings by the employer in addition to the terms of the Agreement, I am satisfied that the Agreement together with the undertakings passes the BOOT by reference to both types of establishment covered by the reference instrument.

[8] Nevertheless, for certainty, I have decided to approve the Agreement with undertakings on the basis that the proper characterisation of the employer’s undertaking is a Meat Manufacturing Establishment.

[9] Subject to the Undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[10] I have sought the views of the Australian Meat Industry Employees Union (AMIEU) in respect of the Undertakings, pursuant to s.190 (4) of the Act and have taken those views into account for the purposes of this Decision.

[11] The Agreement together with the Undertakings is approved and in accordance with s.54 of the Act will operate seven days from approval of the Agreement by the Commission. The nominal expiry date of the Agreement is 17 January 2018.

COMMISSIONER

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Appendix A