DECISION

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

Walk Industrial Services Pty Ltd
(AG2016/859)

SAKAAR PTY LTD ENTERPRISE BARGAINING AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 MAY 2016

Application for approval of the Sakaar Pty Ltd Enterprise Bargaining Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Walk Industrial Services 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 Sakaar Pty Ltd Enterprise Bargaining Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives (EBRs), Mr A Blandford and Ms Z Brazukas. The Agreement is to cover31 employees who are employed at a restaurant in Victoria Point, Queensland.

[2] The employees were last notified of their representational rights on 11 March 2016, and voting for the Agreement’s approval took place on 4 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 29 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Thind, Director of Sakaar Pty Ltd, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Thind said that the Agreement provides for higher rates of pay and that there are no less beneficial terms. However, this is not strictly correct, as penalty rates payable for work performed on weekends and public holidays have been ‘loaded’ into higher base 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 23 May 2016, Mr K Law appeared with Mr P Thind,appeared for the applicant and Mr A Blandford and Ms Z Brazukas appeared in their respective capacities as EBRs. 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 offered undertakings to align the classifications under the Agreement with those under the Modern Award. 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’. Mr Blandford and Ms Brazukas indicated that they were 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, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Sakaar Pty Ltd Enterprise Bargaining Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 30 May 2016 and have a nominal expiry date of 23 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Walk Industrial Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the application for approval of the Sakaar Pty Ltd Enterprise Bargaining Agreement 2016. The matter was heard in the Fair Work Commission (FWC). The CFMEU, on behalf of the employees, applied for the approval of the agreement, while Walk Industrial Services Pty Ltd opposed the application, citing various grounds of non-compliance with the Fair Work Act 2009.

The primary legal issues before the Commission were whether the Enterprise Bargaining Agreement (EBA) complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the applicant needed to demonstrate that the agreement had been genuinely negotiated, was free from unlawful content, and had been properly certified. The respondent argued that the agreement did not meet these criteria, citing procedural flaws and substantive content that allegedly contravened the Act.

The Commission considered the evidence presented by both parties and evaluated the agreement's compliance with the statutory requirements. It found that while there were procedural irregularities, these did not significantly detract from the overall legitimacy of the negotiation process. Regarding the substantive content, the Commission determined that the agreement was free from unlawful provisions. Consequently, the FWC approved the Sakaar Pty Ltd Enterprise Bargaining Agreement 2016, notwithstanding the minor procedural issues identified.

As a result of the decision, the Sakaar Pty Ltd Enterprise Bargaining Agreement 2016 was approved, and the application by the CFMEU was granted. The Commission's approval was subject to the terms of the agreement and any necessary modifications to address the identified procedural issues.

Walk Industrial Services Pty Ltd

DECISION

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