Walk Industrial Services Pty Ltd

[2016] FWCA 3291

[2016] FWCA 3291

FAIR WORK COMMISSION

DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/861)

AMRIT PTY LTD ENTERPRISE BARGAINING AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 MAY 2016

Application for approval of the Amrit Pty Ltd Enterprise Bargaining Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Walk Industrial Services 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 Amrit Pty Ltd Enterprise Bargaining Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with Mr B Pratt, a nominated Employee Bargaining Representative (EBR). The Agreement is to cover 11 employees who are employed at a restaurant in Carindale, Queensland.

[2] The employees were last notified of their representational rights on 14 March 2016, and voting for the Agreement’s approval took place on 5 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 7 of the 9 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr P Thind, Director of Amrit Pty Ltd, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Thind said that the Agreement provides for higher rates of pay and that there are no less beneficial terms. However, this is not strictly correct, as penalty rates payable for work performed on weekends and public holidays have been ‘loaded’ into higher base rates of pay. Nevertheless, I am satisfied that the Agreement passes the BOOT. 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 23 May 2016, Mr K Law appeared with Mr P Thind for the applicant and Mr B Pratt appeared in his capacity as EBR. 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 offered undertakings to align the classifications under the Agreement with those under the Modern 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’. Mr Pratt indicated that he was happy with the Agreement.

[5] Having heard the parties’ 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 ss 180, 186, 187, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Amrit Pty Ltd Enterprise Bargaining Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 30 May 2016 and have a nominal expiry date of 23 May 2020.

DEPUTY PRESIDENT

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