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

Printed by authority of the Commonwealth Government Printer

Walk Industrial Services Pty Ltd, the employer, filed an application in the Fair Work Commission seeking approval of the Gandhi Indian Kitchen and Laneway Stall Enterprise Bargaining Agreement 2016-2020. The applicant argued that the agreement should be approved as it met the necessary requirements under the Fair Work Act 2009. The respondents, including various employee representatives, opposed the application, contending that the agreement was not properly formed due to procedural issues and failed to meet certain substantive criteria under the Act.

The primary legal issues before the court were whether the agreement was validly formed and if it satisfied the requirements for approval under the Fair Work Act 2009. The court had to determine if the agreement was genuinely negotiated and if it complied with procedural requirements, including the need for a majority of employees to support the agreement. Additionally, the court needed to assess if the agreement contained provisions that were contrary to public policy or not genuinely for the benefit of employees.

The Fair Work Commission found that the agreement was validly formed and met the necessary criteria for approval. The court held that the procedural requirements were met, as there was evidence of genuine negotiation and sufficient employee support. The agreement was deemed to be in the best interests of the employees, and no provisions were found to contravene public policy or be detrimental to employees. Consequently, the court approved the Gandhi Indian Kitchen and Laneway Stall Enterprise Bargaining Agreement 2016-2020.

The final orders of the court included the approval of the enterprise bargaining agreement, which would now be binding on the parties involved, effective from the date of the decision. The agreement would remain in force until superseded by a new agreement or until terminated in accordance with the provisions of the Fair Work Act 2009.

Walk Industrial Services Pty Ltd

DECISION

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