Agnew Legal Pty Ltd

[2016] FWCA 5763

[2016] FWCA 5763

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/1714)

NIDYA TRADING PTY LTD - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 AUGUST 2016

Application for approval of the Nidya Trading Pty Ltd - Enterprise Agreement 2016 – agreement approved.

[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 by the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Nidya Trading Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). There were no bargaining representatives involved in the Agreement making process. The Agreement is to cover 17 employees who are engaged in various hospitality roles at Hogs Breath Cafe, Forster, New South Wales. It replaces a previous agreement registered under the ‘WorkChoices’ legislation. 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 6 March 2016, and voting for the Agreement’s approval took place on 28 May 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 17 of the employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 July 2016 and was not lodged within 14 days following the conclusion of the vote. Pursuant to s 185(3)(b) of the Act I consider it fair to extend the time for lodgement of the application to the date of lodgement of 1 July 2016.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Tony Bertwistle, Director, identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Bertwistle said that the Agreement provides for higher base rates of pay of between 12 - 15% than those contained within the reference instrument, which are to compensate for the loss of weekend and public holiday penalties and allowances and annual leave loading. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. On balance, I am satisfied that the Agreement passes the BOOT.

[4] 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. While the Agreement purports to apply throughout the Commonwealth of Australia, in practical terms it only applies to Mr Bertwistle’s franchise business in Forster. At this time, Mr Bertwistle only employs permanent and part time employees.

[5] At a hearing of the application on 16 August 2016, Mr Christopher Agnew, Solicitor, appeared with Mr Tony Bertwistle 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.

[6] 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 Nidya Trading Pty Ltd - Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 23 August 2016 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

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