Application by Poldaap Holdings Pty Ltd ATF Domenico Polistina Family Trust — Benchmark

Ratio

An application for approval of a multi-enterprise agreement was dismissed because the Commission was not satisfied that the agreement was genuinely agreed to by the employees to be covered by it, and that its terms and conditions did not satisfy the Better Off Overall Test, as the agreement failed to provide for penalty rates for work performed on weekends despite the relevant awards requiring them.

Outcome

Against applicant dismissed

Authority signal

Cited 1× Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 5

Poldaap Holdings Pty Ltd operating as Forestway Fresh, a retail store and cafe in Terry Hills, New South Wales, sought approval of the Forestway Group Enterprise Agreement 2016
The proposed agreement covered 35 employees
Two Statutory Declarations were filed identifying the Restaurant Industry Award 2010 and the Retail Industry Award 2010 as the relevant instruments for the BOOT
The Agreement did not provide for penalty rates for work performed on weekends, contrary to requirements of the relevant awards
Declarations claimed higher rates of pay and no less beneficial terms, but this was incorrect given the absence of weekend penalty rates

Factors

For

Against

The Agreement was not genuinely agreed to by the employees to be covered by it
The Agreement failed to satisfy the Better Off Overall Test as it did not provide for penalty rates for work performed on weekends

Legislation referenced

Fair Work Act 2009 (Cth) s 185
Fair Work Act 2009 (Cth) s 186(2)(a)
Fair Work Act 2009 (Cth) s 188
Fair Work Act 2009 (Cth) s 186(2)(d)
Fair Work Act 2009 (Cth) s 193(1)

Concept tags · 4

[P]Enterprise agreement approval [P]Better off overall test (BOOT) [S]Modern award (federal) [S]Overtime and penalty rates

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
[2017] HCA 53 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association	High Court	2017-01-01	Resolved	2	11
[2018] FCAFC 77 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union	Federal Court — Full Court	2018-05-25	Against applicant	2	20
[2010] FWAFB 2762 Appeal of decisions Bupa Care Services Pty Ltd	FWAFB	2010-04-15	Resolved	2	13
[2011] FWAFB 5163 National Tertiary Education Industry Union v University of New South Wales	FWAFB	2011-08-10	Against applicant	2	13
[2010] FWAFB 4602 McDonald's Australia Pty Ltd v Not applicable — appeal by parties seeking...	FWAFB	2010-07-21	For applicant	2	11
[2016] FWCFB 2887 Duncan Hart and Australasian Meat Industry Employees Union (AMIEU) v Coles...	FWC — Full Bench	2016-05-31	Against applicant	2	10
[2012] FWAFB 6397 Appeal of decisions Solar Systems Pty Ltd	FWAFB	2012-08-24	For applicant	2	5
[2011] FCA 719 Construction, Forestry, Mining & Energy Union v Deputy President Hamberger	Federal Court	2011-06-24	Resolved	2	4
[2015] FWCFB 7090 Duncan Hart and Australasian Meat Industry Employees Union, The v Coles...	FWC — Full Bench	2015-10-27	For applicant	2	3
[2011] FWAFB 1537 The Australian Institute of Marine and Power Engineers (AIMPE) v Inco Ships Pty Ltd	FWAFB	2011-03-10	For applicant	2	2

Archived text (382 words)

Application by Poldaap Holdings Pty Ltd ATF Domenico Polistina Family Trust [2016] FWC 1909 (29 March 2016) [2016] FWC 1909 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s 185 - Application for approval of a multi-enterprise agreement Poldaap Holdings Pty Ltd atf Domenico Polistina Family Trust t/as Forestway Fresh (AG2016/595) DEPUTY PRESIDENT SAMS SYDNEY, 29 MARCH 2016 Application for approval of the Forestway Group Enterprise Agreement 2016 – application dismissed. [1] This is an application by Poldaap Holdings Pty Ltd atf Domenico Polistina Family Trust t/as Forestway Fresh (the ‘applicant’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), seeking the approval of the Fair Work Commission (the ‘Commission’) of a multi-enterprise agreement known as the Forestway Group Enterprise Agreement 2016 (the ‘Agreement’). The proposed enterprise agreement is to cover 35 employees engaged at the applicant’s retail store and cafe in Terry Hills, New South Wales. [2] Mr P Polistina , Managing Director, filed two Statutory Declarations in support of the approval of the Agreement (Form F17), one which identified the Restaurant Industry Award 2010 [ MA000119 ] as the relevant instrument for the purposes of the Better Off Overall Test (‘BOOT’), the other which identified the Retail Industry Award 2010 [ MA000004 ] for this purpose. While these Statutory Declarations set out that the Agreement provides for higher rates of pay and no less beneficial terms, this is not strictly correct as the Agreement does not provide for penalty rates for work performed on weekends. [3] At a hearing of the application on 24 March 2016, Mr Polistina appeared for the applicant and Mr F D’Amico appeared in his capacity as a nominated Employee Bargaining Representative. In discussing with Mr Polistina the terms of the Agreement and the method by which the vote for the approval of the Agreement, I informed him that I was not satisfied the Agreement was genuinely agreed to by the employees to be covered by it (ss 186(2)(a) , 188 ) or that its terms and conditions satisfy the BOOT (ss 186(2)(d) , 193 (1)). [4] Given these circumstances and without objection from Mr Polistina , the application was dismissed. I confirm my order to dismiss this application. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR578396>