Walk Industrial Services Pty Ltd

[2016] FWCA 2016

[2016] FWCA 2016

FAIR WORK COMMISSION

DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/488)

GANDHI INDIAN KITCHEN AND LANEWAY STALL ENTERPRISE BARGAINING AGREEMENT 2016 - 2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 MARCH 2016

Application for approval of the Gandhi Indian Kitchen And Laneway Stall 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 (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Gandhi Indian Kitchen and Laneway Stall Enterprise Bargaining Agreement 2016 – 2020 (the ‘Agreement’). The Agreement was negotiated with Mr T Frayne, a nominated Employee Bargaining Representative (EBR) and is to cover 9 employees who are employed at the applicant’s restaurant in Southbank, Queensland.

[2] The employees were last notified of their representational rights on 16 January 2016 and voting for the Agreement’s approval took place on 29 February 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 9 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 March 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Sanjeeva and Thushari Abeywardena, Directors, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr & Ms Abeywardenasaid that the Agreement provides for higher ‘loaded’ base rates of pay that are 7% higher than those under the Award, but that the Agreement does not provide for penalty rates for work performed on weekends and public holidays. 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, mediation and consent arbitration by the Commission.

[4] At a hearing of the application on 31 March 2016, Mr K Law appeared for the applicant and Mr T Frayne appeared in his capacity as EBR. Mr Frayne 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. Rates of pay are to be increased in accordance with the Commission’s Minimum Wage Review Decisions. Mr Frayne indicated that he and the employees that he represented supported the approval of 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Gandhi Indian Kitchen and Laneway Stall Enterprise Bargaining Agreement 2016 – 2020 Pursuant to s 54 of the Act, the Agreement shall operate from 7 April 2016 and have a nominal expiry date of 6 April 2020.

DEPUTY PRESIDENT

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