Agnew Legal Pty Ltd

[2016] FWCA 3777

[2016] FWCA 3777

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/1023)

TEAM HOG PTY LTD - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JUNE 2016

Application for approval of the Team Hog 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 Team Hog Pty Ltd – Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 35 employees who are employed at the applicant’s restaurant in Nelson Bay, New South Wales.

[2] The employees were last notified of their representational rights on 30 November 2015, and voting for the Agreement’s approval took place on 2 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 20 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 April 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 time for lodgement to 27 April 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Hessels, Director of Team Hog Pty Ltd, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Hessels said that the Agreement does not provide for penalty rates for weekends or public holidays, but these 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 7 June 2016, Mr C Agnew, Solicitor,appeared 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. Mr Agnew also offered an undertaking to provide for a review of wages for all employees either annually or at the end of their employment. In the event that the review establishes that employees were not better off during this period, then the employer will pay the relevant employee/s the difference. 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’.

[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, 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 Team Hog Pty Ltd – Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 14 June 2016 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

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