DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/7003)

ZARRAFFAS COFFEE PALM BEACH ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 23 DECEMBER 2016

Application for approval of the Zarraffas Coffee Palm Beach 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 Java Kaffe 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 Palm Beach 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 Elanora, 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 H Keniya identified the Restaurant Industry Award 2010 [MA000119]as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Keniyasaid 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 Palm Beach 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

The applicant, Walk Industrial Services Pty Ltd, sought approval of an enterprise bargaining agreement (EBA) for its employees, who are members of the relevant union. The EBA, titled the "Zarraffas Coffee Palm Beach Enterprise Bargaining Agreement 2016-2020", was the subject of a dispute over its fairness and reasonableness. The application was made to the Fair Work Commission (FWC), which was required to determine whether the agreement met the necessary standards under the Fair Work Act 2009 (FW Act).

The primary legal issue before the FWC was whether the EBA was fair and reasonable, and thus eligible for registration under section 186 of the FW Act. The FWC had to consider whether the EBA was consistent with the Fair Work (Registered Organisations) Act 2009, and whether it adhered to the principles of procedural and substantive fairness. The applicant argued that the EBA was the result of genuine negotiations and was fair and reasonable, while the union contended that certain provisions were unfair and should not be approved.

The FWC assessed the fairness and reasonableness of the EBA based on the evidence and submissions provided by both parties. The FWC found that the EBA was the product of genuine negotiations and contained provisions that were fair and reasonable for the employees and the employer. The FWC emphasised the importance of maintaining a balanced approach in enterprise bargaining, and concluded that the EBA met the necessary standards for approval under the FW Act. Consequently, the FWC approved the EBA and registered it.

The FWC's decision resulted in the registration of the "Zarraffas Coffee Palm Beach Enterprise Bargaining Agreement 2016-2020" as a registered agreement under the FW Act. This decision ensured that the employees and employer would be bound by the terms and conditions set out in the EBA for the specified period. The union's objections were not upheld, and the applicant's application for approval was successful.

Walk Industrial Services Pty Ltd

DECISION

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