100 Skyring Pty Ltd t/a The Defiant Duck

[2016] FWCA 6699

[2016] FWCA 6699

FAIR WORK COMMISSION

DECISION

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

100 Skyring Pty Ltd t/a The Defiant Duck
(AG2016/4281)

THE DEFIANT DUCK - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 SEPTEMBER 2016

Application for approval of The Defiant Duck - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by 100 Skyring Pty Ltd t/a The Defiant Duck (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Defiant Duck - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with a Union or any Employee Bargaining Representatives. It is to cover all employees of the applicant (currently 15) engaged at the applicant’s restaurant in Brisbane. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 13 April 2016, and voting for the Agreement’s approval took place on 23 June 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 9 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 September 2016, a period of 47 days from when the Agreement was made. Therefore, the application was made outside of the 14 day period required by s 185(3) of the Act. However, in all the circumstances, including delays that Mr P Barakat of the applicant submitted he experienced corresponding with his solicitor, I have decided that it is fair to extend that period to allow the application to be made within time and do so under s 185(3)(b) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Mr P Barakat, Director of the applicant, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). The Agreement contains some terms which are less beneficial than the reference instrument, including reduced penalty rates and allowances. However, the wage rates are higher than those in the reference instrument by between 10% and 12%. Wage rates are to be adjusted annually in line with the Commission’s Minimum Wage Review decision effective July each year. Mr C Agnew, Solicitor, on behalf of the applicant, provided rosters and wage comparisons for each employee who is to be covered by the Agreement. These calculations illustrate that each employee is better off under the Agreement than the reference instrument. Accordingly, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a dispute resolution procedure at 2.4 provides for conciliation and consent arbitration by the Commission.

[4] Upon reviewing theterms of the pre-approval 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 they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as The Defiant Duck - Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 20 September 2016. It shall have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

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