[2021] FWCA 4524 [Note: An appeal pursuant to s.604 (C2022/3219) was lodged against this decision - refer to Full Bench decision dated 21 October 2022 [[2022] FWCFB 191] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hot Wok Food Makers Pty Ltd
(AG2021/6101)

HOT WOK FOOD MAKERS PTY LTD (ABN 15 058 494 447) WORKPLACE AGREEMENT 2021

Restaurants
DEPUTY PRESIDENT MANSINI	MELBOURNE, 28 JULY 2021

Application for approval of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021.

[1] Hot Wok Food Makers Pty Ltd has applied for approval of a single enterprise agreement known as the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure that the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Agreement was approved on 28 July 2021 and, notwithstanding clause 1.31 and in accordance with s.54, will operate from 4 August 2021. The nominal expiry date of the Agreement is 28 July 2025.

[7] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.