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

Walk Industrial Services Pty Ltd recently appeared before the Fair Work Commission in an application concerning the approval of a proposed enterprise bargaining agreement. The agreement in question was the Business Care Plus Pty Ltd Enterprise Bargaining Agreement 2016-2020. The applicant, Walk Industrial Services Pty Ltd, sought the commission's approval of the agreement as a modern award, which would then apply to its employees covered by the agreement.

The primary legal issue before the commission was whether the proposed agreement met the requirements of section 230 of the Fair Work Act 2009. Specifically, the commission had to determine if the agreement provided for fair and reasonable terms and conditions of employment and if it had been negotiated in good faith. The applicant argued that the agreement was fair and reasonable and had been negotiated in good faith, while no other party contested the application.

In considering the application, the commission examined the terms and conditions outlined in the proposed agreement, including wages, leave entitlements, and other employment conditions. The commission found that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the needs of both the employees and the employer. Furthermore, the commission was satisfied that the agreement had been negotiated in good faith, as evidenced by the process followed in reaching the agreement. Consequently, the commission approved the proposed agreement as a modern award, effective from the date of the decision.

The final orders of the commission were that the Business Care Plus Pty Ltd Enterprise Bargaining Agreement 2016-2020 be approved as a modern award, applicable to the employees of Walk Industrial Services Pty Ltd. The agreement was to be registered with the commission and would come into effect on the date of the decision. This decision provided certainty for both the employer and employees, ensuring that the agreement was fair, reasonable, and negotiated in good faith.

Walk Industrial Services Pty Ltd

DECISION

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