Walk Industrial Services Pty Ltd

[2016] FWCA 1177

[2016] FWCA 1177

DECISION

Fair Work Act 2009

s 185 - Application for approval of a single-enterprise agreement

Walk Industrial Services Pty Ltd

(AG2015/6928)

JNEL PTY LTD ENTERPRISE BARGAINING AGREEMENT 2015 -

2019

Restaurants

DEPUTY PRESIDENT SAMS SYDNEY, 23 FEBRUARY 2016

Application for approval of the JNEL Pty Ltd Enterprise Bargaining Agreement 2015 - 2019.

[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

JNEL Pty Ltd Enterprise Bargaining Agreement 2015 - 2019 (the ‘Agreement’). The

Agreement was negotiated with Ms S Heard, a nominated Employee Bargaining

Representative (EBR) and is to cover 14 employees who are employed at a restaurant in

Shailer Park, Queensland.

[2]        The employees were last notified of their representational rights on 2 October 2015,

and voting for the Agreement’s approval took place on 27 November 2015. The time limits

under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 12

of the employees who cast a valid vote, agreed to approve the Agreement. The application for

approval of the Agreement was lodged on 9 December 2015, thereby satisfying s 185(3) of

the Act.

[3]        In the Employer’s Declaration in support of the application (Form F17) Mr J Winton,

Director of JNEL Pty Ltd t/as Toscani’s Café Restaurant, Loganholme, identified the

Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument

[2016] FWCA 1177

for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Winton said that the

Agreement provides for rates of pay that are 7% higher than those under the Award and that

there are no less beneficial terms. However, this is not strictly correct, as the Agreement does

not provide for penalty rates for work performed on weekends or public holidays. Rates of

pay are to be adjusted in accordance with the Commission’s Minimum Wage Review

decisions. 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

mediation, conciliation and consent arbitration by the Commission.

[4]        At a hearing of the application on Mr K Law, of Walk Industrial Services Pty Ltd

appeared with Mr J Winton for the applicant and Ms S Heard appeared in her capacity as

EBR. Mr D Peverill appeared for United Voice (the ‘Union’). While the Union did not claim

to be a bargaining representative for the employees, Mr Peverill submitted that the Union was

eligible to represent the industrial interests of the employees. 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 Peverill raised some concerns as to the increases to rates of pay over the

nominal term of the Agreement and a provision for a wage reconciliation on termination of

employment. There followed a number of exchanges between the Union and Mr Law

concerning these issues. Mr Law subsequently provided undertakings clarifying the increases

to rates of pay during the life of the Agreement and an employee’s entitlement to a wage

reconciliation on termination of employment, in any circumstances. 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’. He also provided indicative rosters

to demonstrate that the employees would be better off overall under the Agreement compared

to the Award. Having considered the materials filed by the applicant, I am satisfied that the

Agreement passes the BOOT.

[2016] FWCA 1177

[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 JNEL Pty Ltd Enterprise Bargaining Agreement 2015 – 2019. Pursuant to s 54

of the Act, the Agreement shall operate from 1 March 2016 and have a nominal expiry date of

29 February 2020.

DEPUTY PRESIDENT

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