6Senses Coffee Pty Ltd

[2015] FWCA 8320

[2015] FWCA 8320

FAIR WORK COMMISSION

DECISION

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

6Senses Coffee Pty Ltd
(AG2015/6237)

6SENSES COFFEE ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 DECEMBER 2015

Application for approval of the 6Senses Coffee Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by 6Senses Coffee 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 6Senses Coffee Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 8 employees who are employed at the applicant’s two takeaway coffee shops in New South Wales.

[2] The employees were last notified of their representational rights on 17 July 2015 and voting for the Agreement’s approval took place between 11 and 13 November 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 8 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr E Patel, Director, identified the Fast Food Industry Award 2010 [MA000003] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Patelsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including no weekend, late or early morning penalty rates, flexible ordinary hours for part time employees, a reduced loading for school-based trainees and a reduced minimum engagement for casual employees. However, the Agreement provides for higher rates of pay. Rates of pay are to be adjusted with reference to 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 26 and 27 respectively, and a disputes resolution procedure at clause 25 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 19 November 2015, Mr D Price appeared with Mr E Patel for the applicant. Mr Price 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. He explained that the Agreement provided for two different pay structures – one for stores that operate on weekdays only and one for stores operating seven days per week. The Agreement does not provide for penalty rates for work performed on weekends, in the evening and in the early morning as these have been ‘loaded’ into higher base rates of pay. Mr Price later provided indicative rosters for employees to demonstrate that the BOOT had been satisfied.

[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 6Senses Coffee Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 8 December 2015 and have a nominal expiry date of 1 November 2019.

DEPUTY PRESIDENT

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