Agnew Legal Pty Ltd

[2016] FWCA 9091

[2016] FWCA 9091

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/7099)

NSG SERVICES GROUP - HOSPITALITY - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 20 DECEMBER 2016

Application for approval of the NSG Services Group - Hospitality - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal 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 NSG Services Group - Hospitality - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover the applicant’s employees located at its premises in Ashmore City, QLD. 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 7 September 2016, and voting for the Agreement’s approval took place on 30 September 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all four employees of the applicant cast a valid vote in favour of approving the Agreement. The application for approval of the Agreement was lodged on 17 November 2016. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 17 November 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Goodman identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Goodmansaid that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of pay, which are sufficiently high enough to ensure employees are better off overall. 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 disputes resolution procedure at clause 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 December 2016, Mr C Agnew appeared with Mr G Goodman for the applicant. 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. He explained that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions and that the rates of pay under the Agreement had been paid to employees since the Agreement was made. Mr Goodman confirmed that no employee works only on weekends and there is no intention of the applicant that any employee would do so in future.

[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 NSG Services Group - Hospitality - Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 19 December 2016 and have a nominal expiry date of 1 September 2020.

DEPUTY PRESIDENT

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