Walk Industrial Services Pty Ltd

[2016] FWCA 1173

[2016] FWCA 1173

FAIR WORK COMMISSION

DECISION

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

Walk Industrial Services Pty Ltd
(AG2015/6926)

SABOTAGED PTY LTD ENTERPRISE BARGAINING AGREEMENT 2015 - 2019

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 23 FEBRUARY 2016

Application for approval of the Sabotaged 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 (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sabotaged Pty Ltd Enterprise Bargaining Agreement 2015 – 2019 (the ‘Agreement’). The Agreement was negotiated with Ms G Loakes,a nominated Employee Bargaining Representative (EBR), and is to cover 4 employees who are employed at a bar in Fortitude Valley, Queensland.

[2] The employees were last notified of their representational rights on 1 November 2015 and voting for the Agreement’s approval took place on 8 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 4 of the employees 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 B Cochran, Director of Sabotaged Pty Ltd, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Cochransaid 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 22 January 2016, Mr K Law, of Walk Industrial Services Pty Ltdappeared with Mr B Cochran for the applicant and Ms G Loakes 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.

[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 Sabotaged 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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