DECISION

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

Agnew Legal Pty Ltd
(AG2016/1352)

THORNELLS GROUP PTY LTD - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 JULY 2016

Application for approval of the Thornells Group Pty Ltd - 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 Thornells Group Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 40 employees who are employed at the applicant’s franchise restaurant in Geraldton, Western Australia.

[2] The employees were last notified of their representational rights on 18 February 2016, and voting for the Agreement’s approval took place on 14 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 17 of the 18 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 May 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 27 May 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17), Ms L Wilson, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Wilsonsaid that the Agreement does not provide for penalty rates for work performed on weekends or public holidays, but that these rates have been ‘loaded’ into higher base rates of pay. 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 15 July 2016, Mr C Agnew, Solicitor,appeared with Ms L Wilson 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, 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 Thornells Group Pty Ltd - Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 22 July 2016 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Agnew Legal Pty Ltd, sought approval of the Thornells Group Pty Ltd - Enterprise Agreement 2016. The applicant submitted that the enterprise agreement was a bona fide attempt to formalise the terms and conditions of employment between the employer and employees, and that it was in the best interests of the employees to be bound by the agreement. The court was required to determine whether the agreement was an appropriate means of regulating the employment relationship between the parties and whether the approval of the agreement was in the best interests of the employees.

The court examined the evidence presented by the applicant and considered the requirements of the Fair Work Act 2009. It was necessary to determine whether the agreement was a genuine enterprise agreement, whether it dealt with the matters specified in the Act, and whether it was an appropriate means of regulating the employment relationship. The court found that the agreement was a genuine attempt to formalise the terms and conditions of employment and that it dealt with the relevant matters. The court also found that the agreement was an appropriate means of regulating the employment relationship between the parties.

In light of the findings, the court approved the Thornells Group Pty Ltd - Enterprise Agreement 2016, and the applicant was granted the orders it sought. The decision of the court was significant as it provided clarity on the requirements for approving an enterprise agreement and reinforced the importance of genuine attempts to formalise the terms and conditions of employment.

Agnew Legal Pty Ltd

DECISION

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