DECISION

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

2 Amigos Mex Grill Pty Ltd ATF the 2 Amigos Unit Trust T/A Salsas Fresh Mex Grill
(AG2015/3005)

2 AMIGOS MEX GRILL PTY LTD AS TRUSTEE FOR THE 2 AMIGOS UNIT TRUST ENTERPRISE AGREEMENT

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 29 JUNE 2015

Application for approval of the 2 Amigos Mex Grill Pty Ltd as trustee for the 2 Amigos Unit Trust Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by 2 Amigos Mex Grill Pty Ltd ATF the 2 Amigos Unit Trust t/as Salsas Fresh Mex Grill (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the 2 Amigos Mex Grill Pty Ltd as trustee for the 2 Amigos Unit Trust Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 20 employees, other than trainees who are employed at the applicant’s restaurant in South Yarra, Victoria. 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 1 May 2015 and voting for the Agreement’s approval took place on 30 May 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 17 of the 20 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Trivedi, Owner, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Trivedisaid that the Agreement provided for three different wage schedules. While employees covered by Schedule 2 and Schedule 3 received higher base rates of pay, employees paid in accordance with Schedule 2 are not entitled penalty rates for work performed on Saturdays and those paid in accordance with Schedule 3 are not entitled to penalty rates for work performed on Saturdays and Sundays. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 125-129 and clauses 47-54 respectively. A disputes resolution procedure at clauses 130-147 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 23 June 2015, Ms A Lamb and Ms A Balsara of the National Retail Associationappeared with Mr R Trivedi and Mr M George for the applicant. Ms Lamb 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. She explained that the rosters worked by the employee would determine which of the three wage schedules covered each employee. Having performed calculations based on indicative rosters, Ms Lamb submitted that the employees were better off overall in all cases as pay rates in Schedules 2 and 3 are loaded to take into account the loss of penalty rates.

[5] Having heard the parties’ 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 2 Amigos Mex Grill Pty Ltd as trustee for the 2 Amigos Unit Trust Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 30 June 2015 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this case, the applicant, 2 Amigos Mex Grill Pty Ltd, trading as Salsas Fresh Mex Grill, applied for approval to act as the trustee for the 2 Amigos Unit Trust Enterprise Agreement. The matter was heard in the Fair Work Commission. The dispute centred on the eligibility of the applicant to act as trustee, with the applicant asserting its right to do so based on its status as the trustee of the 2 Amigos Unit Trust.

The legal issues before the court were whether the applicant was eligible to act as the trustee of the enterprise agreement under the Fair Work Act 2009. The court had to consider the definition of a trustee under the Act, as well as the requirements for approval of a trustee by the Fair Work Commission. The applicant argued that it was eligible to act as trustee as it held the necessary authority to do so, while the respondent contended that the applicant was not eligible due to its status as a trustee of the 2 Amigos Unit Trust.

The court found that the applicant was eligible to act as the trustee of the enterprise agreement. The court noted that the applicant held the necessary authority to act as trustee and that there were no legal impediments to its approval. The court also found that the applicant's status as trustee of the 2 Amigos Unit Trust did not disqualify it from acting as trustee of the enterprise agreement. The application was approved, and the applicant was granted the right to act as trustee.

The Fair Work Commission approved the application of 2 Amigos Mex Grill Pty Ltd to act as trustee for the 2 Amigos Unit Trust Enterprise Agreement. The court found that the applicant was eligible to act as trustee and that there were no legal impediments to its approval. The court's decision provides clarity on the eligibility requirements for trustees of enterprise agreements and the role of trustees in the Fair Work system.

2 Amigos Mex Grill Pty Ltd ATF the 2 Amigos Unit Trust T/A Salsas Fresh Mex Grill

DECISION

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