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

Printed by authority of the Commonwealth Government Printer

100 Skyring Pty Ltd, trading as The Defiant Duck, applied for approval of their 2016 Enterprise Agreement. The application was heard in the Fair Work Commission. The dispute centred on whether the proposed agreement met the necessary legal requirements for approval under the Fair Work Act 2009. The applicant argued that the agreement was fair and appropriate, while the respondent, who represented the employees, contended that certain provisions did not adequately protect employee rights.

The central legal issues revolved around whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the court needed to determine if the agreement was made in good faith, if it provided for fair terms and conditions, and if the necessary consultation processes were followed. The court also examined whether the agreement contained provisions that unfairly disadvantaged employees, such as excessive working hours or inadequate remuneration.

In its decision, the Fair Work Commission found that the agreement was largely in compliance with the legal requirements. The Commission noted that the applicant had demonstrated good faith in negotiating the agreement and that the terms and conditions were fair and reasonable. While some concerns were raised about certain provisions, the Commission concluded that these issues did not significantly detract from the overall fairness of the agreement. As a result, the Commission approved the application for the agreement to be registered.

The final orders of the Commission were that the 2016 Enterprise Agreement between 100 Skyring Pty Ltd and the respondent be approved and registered, effective from the date of the decision. This decision allowed the agreement to be enforced as a binding contract between the parties.

100 Skyring Pty Ltd t/a The Defiant Duck

DECISION

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