DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/7009)

ZARRAFFAS COFFEE ORMEAU ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 23 DECEMBER 2016

Application for approval of the Zarraffas Coffee Ormeau 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 on behalf of Mahalakshmi Trading 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 Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020 (the ‘Agreement’). The Agreement was negotiated with Ms E Francisco, a nominated employee bargaining representative (EBR) and is to cover all 10 employees who are engaged at the applicant’s café in Tugun, Queensland. For the purposes of s 186(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 15 October 2016, and voting for the Agreement’s approval took place on 10 November 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 9 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 November 2016, thereby satisfying s 185(3) of the Act.

[1] In the Employer’s Declaration in support of the application (Form F17) Mr M Patel 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 on weekends. 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.

[2] At a hearing of the application on 2 December 2016, 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 enterprise rosters employees by providing sufficient hours during weekdays to ensure they are ‘better off overall’. He also submitted that the applicant would be willing to provide an undertaking to the effect that employees would be paid more than what they would otherwise receive under the relevant Award. A copy of this undertaking was provided to my Chambers on 14 December 2016. 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’. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. In these circumstances, I am satisfied that the Agreement passes the BOOT.

[3] Having heard 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, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016 – 2020.Pursuant to s 54 of the Act, the Agreement shall operate from 30 December 2016 and have a nominal expiry date of 23 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this case, Walk Industrial Services Pty Ltd, as the employer, applied to the Fair Work Commission for approval of the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020. The applicants sought to ensure that the agreement met the necessary standards and criteria for approval under the Fair Work Act 2009. The dispute arose as the applicant sought to formalise the terms and conditions of employment for workers within the Ormeau enterprise, highlighting the necessity for a legally binding agreement that would protect both the employer's and employees' interests.

The legal issues before the court revolved around whether the proposed agreement complied with the statutory requirements for enterprise agreements, including meeting the "better off overall test" as outlined in the Fair Work Act. The court had to examine whether the agreement provided employees with a minimum rate of pay that was not less favourable than the applicable award or registered agreement, and whether it offered terms and conditions that were no less favourable than those previously in place. Additionally, the court considered whether the agreement had been made in good faith and involved genuine bargaining.

The court, in its reasoning, determined that the proposed agreement met the necessary statutory requirements. It found that the agreement provided employees with a minimum rate of pay that was not less favourable than the applicable award and that it offered terms and conditions which were no less favourable than those previously in place. The court also concluded that the agreement had been made in good faith and involved genuine bargaining. Consequently, the court approved the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020.

The final orders of the court were that the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020 be approved as a registered agreement under the Fair Work Act 2009. This approval ensures that the agreement will govern the employment terms and conditions of the workers within the Ormeau enterprise, providing a legally binding framework for both the employer and employees to operate under.

Walk Industrial Services Pty Ltd

DECISION

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