Starspec Pty Ltd

[2016] FWCA 6276

[2016] FWCA 6276

FAIR WORK COMMISSION

DECISION

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

Starspec Pty Ltd
(AG2016/3952)

STARSPEC PTY LTD ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 5 SEPTEMBER 2016

Approval of the Starspec Pty Ltd Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Starspec 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 Starspec Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with a Union or any Employee Bargaining Representatives. It is to cover all employees of the applicant (currently 72) who are employed within the classifications set out in the Agreement. 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 9 June 2016, and voting for the Agreement’s approval took place on 7 July 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 27 of the 29 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 July 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Mr J Gloftis, Managing Director of the applicant, identified the Restaurant Industry Award 2010 [MA000119] (the Award) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). The base wage rates in the Agreement are 15% higher than those in the reference instrument for permanent employees and 40% higher for casual employees. The majority of current employees are casual. The Agreement provides for a 2% wage increase from the first full pay period on or after 1 July 2017. In light of an undertaking I discuss below, the penalty and overtime rates mirror those in the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a dispute resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 2 September 2016, Mr D D’Arcy appeared with permission on behalf of the applicant, together with Ms J Gallagher of the applicant. Mr D’Arcy submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. After I enquired about the discrepancy between the rates of pay for overtime worked on a Saturday in clause 4.2.2 of the Agreement and those in the Award, Mr D’Arcy offered an undertaking that employees would be paid Saturday overtime rates equivalent to those in the Award. 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’.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the pre-approval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 191, in so far as they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the Starspec Pty Ltd Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 9 September 2016. It shall have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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