3Burn Pty Ltd

[2014] FWCA 4728

[2014] FWCA 4728

FAIR WORK COMMISSION

DECISION

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

3Burn Pty Ltd
(AG2014/1652)

3BURN PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 15 JULY 2014

Application for approval of the 3Burn Pty Ltd - Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by 3Burn Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the 3Burn Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 30 employees, apart from Restaurant Managers, who are employed at the applicant’s cafe in Cockburn, Western Australia. 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 8 March 2014, and voting for the Agreement’s approval took place on 19 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 22 of 23 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms T O’Brien, General Manager, identified the Restaurant Industry Award 2010 [MA000119] and Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms O’Briensaid that the Agreement does provide for some terms and conditions that are less beneficial than those in the reference instruments, including loaded rates which do not include weekend penalties or public holiday rates, and the removal of meal, split shift, tool and special clothing allowances and other non applicable allowances. However, the applicable allowances and penalty rates have been loaded into the base rates which are 6.4 - 9.8% higher for permanent employees, 27.4 - 34.8% higher for casual employees, and 2 - 9% higher for junior employees. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 15 July 2014, Mr C Agnew, Solicitor appeared with Mr M Davy, Director of 3Burn Pty Ltd and Ms T O’Brien, General Manager. Mr Agnew 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.

[5] Having heard the applicant’s 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 3Burn Pty Ltd - Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 22 July 2014 and have a nominal expiry date of 1 March 2018.

DEPUTY PRESIDENT

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