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austlii:cth/FWCA/2013/6993
appellant. The application for approval of the Lets Do Yum Cha Pty Ltd EBA was granted. The agreement was approved as a single-enterprise agreement under s 185 of the Fair Work Act 2009, to operate from 20...
The Fair Work Commission approved an enterprise agreement for a catering company called 'Lets do Yum Cha'. The agreement covered 8 employees and provided higher pay rates that included loaded penalty rates and allowances. The Commission checked that all legal requirements were met: employees were properly notified, voting was conducted properly, the agreement was better for employees overall than the award, and it included required terms about flexibility, consultation, and dispute resolution. The agreement will run for four years from September 2013.
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1 cited instrument linked from this judgment.
s.185 - Application for approval of a single-enterprise agreement
Application for approval of the Lets Do Yum Cha Pty Ltd EBA.
[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the 'Act'), filed by Lets Do Yum Cha Pty Ltd t/as Lets Do Yum Cha (the 'applicant') which seeks the approval of the Fair Work Commission (the 'Commission') of a single enterprise agreement to be known as the Lets Do Yum Cha Pty Ltd EBA (the 'Agreement'). The Agreement is to cover 8 employees who are employed in the applicant's catering business.
[2] The employees were last notified of their representational rights on 18 July 2013, and voting for the Agreement's approval took place between 28 and 30 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 7 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 August 2013, thereby satisfying s 185(3) of the Act.
[3] In the Employer's Declaration in support of the application (Form F17) Mr R Bates, Director, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the 'BOOT'). Mr Bates said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this is not strictly true, as the Agreement provides for higher rates of pay, into which are loaded a number of penalty rates and allowances. Rates of pay are to be adjusted by reference to the Commission's Federal Minimum Wage Review Decision. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 9 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.
[4] At a hearing of the application on 13 September 2013, Mr M Corrigan of Platinum Employee Relations appeared for the applicant. Mr Corrigan 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 said that the applicant's business was primarily involved in catering at large events like Sydney's Royal Easter Show, Brisbane's Ekka and festivals like the Big Day Out.
[5] Having heard the 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 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 Lets Do Yum Cha Pty Ltd EBA. Pursuant to s 54 of the Act, the Agreement shall operate from 20 September 2013 and have a nominal expiry date of 19 September 2017.
Printed by authority of the Commonwealth Government Printer
The application for approval of the Lets Do Yum Cha Pty Ltd EBA was granted. The agreement was approved as a single-enterprise agreement under s 185 of the Fair Work Act 2009, to operate from 20 September 2013 with a nominal expiry date of 19 September 2017.