Wei's Origin Pty Ltd

[2014] FWC 4214

[2014] FWC 4214

FAIR WORK COMMISSION

DECISION

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

Wei's Origin Pty Ltd
(AG2014/5735)

COMMISSIONER BULL PERTH, 22 JULY 2014

Application for approval of the Wei's Origin Enterprise Agreement.

[1] This is an application for the approval of an enterprise agreement known as the Wei's Origin Enterprise Agreement (the Agreement) by Wei’s Origin Pty Ltd (the Applicant).

[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[3] Upon review of the application, the Commission wrote to the Applicant on 7 May 2014 in relation to a number of concerns it had it relation to the Agreement.

Notice of Employee Representational Rights

[4] The Commission noted the Notice of Employee Representational Rights (NERR) which was attached to the application advised the employees of the following:

“Fair Work Australia has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation”

[5] The Commission is unaware of a low-paid bargaining authorisation being granted in relation to this Agreement.

[6] The Applicant was asked to provide any comments in relation to the content contained in the NERR and how the NERR conformed with s.174(1A) of the Act.

Form F17

[7] The application was accompanied by a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Statutory Declaration) which was made by Mr Weibin Ye, Director of the Applicant. Mr Ye declared at questions 3.2 - 3.3 of the Statutory Declaration that there is no modern award for the purpose of the better off overall test and at question 3.4 declared that the Agreement does not contain any terms or conditions of employment that are less beneficial then the reference instrument.

[8] In its correspondence to the Applicant, the Commission requested the Applicant to identify the appropriate modern award for the purpose of the better off overall test and informed the Applicant the Agreement contained a number of terms and conditions less beneficial to those provided when compared to the Fast Food Industry Award 2010 (the Award). The Fast Food Award appearing to be the relevant award for the better off overall test as the Applicant named its industry as “Fast Food Restaurant”. In particular, these terms related to the rates of pay and penalties being less than the Award, minimum engagement period for casual employees, employee deductions, additional hours and superannuation.

Loaded wage rates

[9] The Commission also noted that the Agreement provides for a loaded wage rate, inclusive of annual leave and personal leave at clause 32 - Payment of annual leave and personal leave as loaded wage.

[10] The Full Bench decision in Canavan Building Pty Ltd [2014] FWCFB 3202 held that provisions that allow annual leave to be incorporated into the hourly rate of pay is inconsistent with s.55(1) and 93 of the Act.

[11] The Applicant was asked to respond to the concerns raised by the Commission or alternatively file a notice of discontinuance by no later than close of business 14 May 2014.

[12] On 14 May 2014, the Applicant phoned my Chambers to seek clarification about the matters raised by the Commission. At the conclusion of the telephone conversation, the Applicant informed my Chambers that he intended to file a notice of discontinuance.

[13] As a notice of discontinuance was not received by the Applicant, my Chambers sent an email to the Applicant on 22 May 2014. The Applicant was asked to file a notice of discontinuance by no later than close of business 27 May 2014 or the matter would be dismissed.

[14] To date my Chambers has had no contact from the Applicant and has not received a notice of discontinuance.

[15] Section 587 of the Act provides powers to the Commission to dismiss applications. It states:

587 Dismissing applications

(1)  Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)  the application is not made in accordance with this Act; or
(b)  the application is frivolous or vexatious; or
(c)  the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2)  Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)  is frivolous or vexatious; or
(b)  has no reasonable prospects of success.

(3)  The FWC may dismiss an application:

(a)  on its own initiative; or
(b)  on application.

(My emphasis)

[16] Pursuant to the powers of s.587 of the Act it provides that the Commission may dismiss an application on its own initiative (s.587(3)(a)).

[17] The Applicant has been provided with a number of opportunities to advise the Commission as to any comments it had in relation to its application and the concerns raised by the Commission. Further, the Applicant had advised my Chambers on 14 May 2014 that it sought to withdraw the application and undertook to file a notice of discontinuance. Since the telephone conversation the Applicant has not sought to make contact with the Commission nor file a notice of discontinuance.

[18] In these circumstances, and given the absence of any further advice and material to support the application and the failure to file a notice of discontinuance I hereby dismiss the application pursuant to 587(3)(a) of the Act.

COMMISSIONER

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