Agnew Legal Pty Ltd

[2016] FWCA 7527

[2016] FWCA 7527

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/5907)

SWEETLIPS ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 19 OCTOBER 2016

Application for approval of the Sweetlips 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 on behalf of Sweetlips Enterprises 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 Sweetlips Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 51 employees who are employed at the applicant’s restaurants in Freemantle, Leederville and Scarborough, Western Australia.

[2] The employees were last notified of their representational rights on 28 July 2016, and voting for the Agreement’s approval took place on 27 August 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 26 of the 39 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 September 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 21 September 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17), Mr M Waldock, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Waldock said 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. Mr C Agnew, the applicant’s solicitor, notified my Chambers on 4 October 2016, that there had been an error made with the rates of pay in the Agreement that had been lodged with the Commission. As a result, the rates of pay were lower than the rates the applicant intended to pay its employees. Mr Agnew indicated that the applicant would be willing to provide an undertaking to increase the rates of pay in the Agreement for adults, 19 and 16 year old employees by 2.4% and by 7.6% for 17 and 18 year old employees. Mr Agnew also provided my Chambers with indicative rosters and weekly earnings for the applicant’s employees which disclosed that the employees would be better off under the Agreement than under the reference instrument, provided employees received the higher rates of pay. The applicant provided the undertaking to my Chambers on 13 October 2016. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Given this, 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 4 October 2016, Mr C Agnew appeared with Mr M Waldock 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 increase in July 2016 had already been passed onto the employees.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself with the applicant’s undertaking, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Sweetlips Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 20 October 2016 and have a nominal expiry date of 20 June 2020.

DEPUTY PRESIDENT

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