Walk Industrial Services Pty Ltd

[2017] FWCA 371

[2017] FWCA 371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Walk Industrial Services Pty Ltd
(AG2016/7904)

ZARRAFFAS COFFEE GROVELY ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 20 JANUARY 2017

Application for approval of the Zarraffas Coffee Grovely Enterprise Bargaining Agreement 2016-2020.

[1] This is an application, pursuant to s185 of the Fair Work Act 2009 (the ‘Act’), filed by Walk Industrial Services on behalf of Kapi Family Trust t/a Zarraffas Coffee Grovely (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Zarraffas Coffee Grovely Enterprise Bargaining Agreement 2016-2020 (the ‘Agreement’). The Agreement was negotiated with Ms K Young, a nominated employee bargaining representative (EBR) and is to cover 12 employees who are engaged in the applicant’s café in Grovely, QLD. For the purposes of s186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 17 November 2016, and voting for the Agreement’s approval took place on 13 December 2016. The time limits under s181(2) of the Act are thereby satisfied. In secret ballot, all 10 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 December 2016 thereby satisfying s185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr E Patel, the owner of the business, identified the Restaurant Industry Award 2010 [MA000119]as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Patelsaid the Agreement provides for rates of pay which are 8% higher than the reference instrument. He also said that the Agreement provides for no terms which are less beneficial. This is not strictly correct, as the Agreement does not provide for penalty rates and overtime. 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 13 January 2017, Mr Law, Solicitor,appeared for the applicant. 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 submitted that the business rosters employees by providing sufficient hours during weekdays to ensure they are ‘better off overall’. He also referred to cl18.2 of the Agreement which states that employees will be paid more than what they would otherwise receive under the relevant Award. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. On balance, I am satisfied that the Agreement passes the BOOT. During the hearing, Ms Young indicated she was happy with the Agreement.

[5] Having heard the applicant’s 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 ss180, 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 Zarraffas Coffee Grovely Enterprise Bargaining Agreement 2016 – 2020.Pursuant to s54 of the Act, the Agreement shall operate from 20 January 2017 and have a nominal expiry date of 13 January 2021.

DEPUTY PRESIDENT

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