Walk Industrial Services Pty Ltd

[2016] FWCA 8729

[2016] FWCA 8729

FAIR WORK COMMISSION

DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/6892)

BUSINESS CARE PLUS PTY LTD ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 5 DECEMBER 2016

Application for approval of the Business Care Plus Pty Ltd 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 Business Care Plus 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 Business Care Plus Pty Ltd Enterprise Bargaining Agreement 2016-2020 (the ‘Agreement’). The Agreement was negotiated with Ms C Moreno, an Employee Bargaining Representative (EBR) and is to cover 8 employees who are employed at the applicant’s café in Brisbane, Queensland.

[2] The employees were last notified of their representational rights on 7 October 2016 and voting for the Agreement’s approval took place on 30 October 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 8 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 November 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Millar, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Millar said that the Agreement provides for higher rates of pay than those set out in 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 and public holidays and these have been ‘loaded’ into higher rates of pay. Nevertheless, I am satisfied that the Agreement passes the BOOT. 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 28 November 2016, Mr K Law of Walk Industrial Services Pty Ltd,appeared with Mr D Millar for the applicant and Ms C Moreno appeared in her capacity as EBR. 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. He explained that rates of pay are 8% higher than those under the Award and are to be adjusted with reference to the Commission’s Minimum Wage Review Decisions during the Agreement’s nominal term. This means that the Agreement’s rates of pay would continue to be 8% higher than those under the Award. He also advised that there had been a typographical error in the table at clause 18 in which the BCP 2 weekly rate should read $747.47 rather than $774.47. Ms Moreno indicated that she was happy with the Agreement.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Business Care Plus Pty Ltd Enterprise Bargaining Agreement 2016-2020. Pursuant to s 54 of the Act, the Agreement shall operate from 5 December 2016 and have a nominal expiry date of 28 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE422538  PR588229>