Agnew Legal Pty Ltd

[2016] FWCA 2438

[2016] FWCA 2438

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/403)

BEST IN THE WEST TACOS PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 APRIL 2016

Application for approval of the Best in the West Tacos Pty Ltd - Enterprise Agreement 2015.

[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 Best in the West Tacos Pty Ltd - Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 27 employees who are employed by Best in the West Tacos Pty Ltd at its restaurant (‘Guzman y Gomez’) in Penrith, New South Wales. 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 8 December 2015, and voting for the Agreement’s approval took place on 21 January 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 19 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was filed outside of the 14 days required by s 186(3)(a). The applicant put submissions in support of the Commission extending the time for lodging the application. Pursuant to s 185(3)(b) of the Act, I consider that it would be fair to extend the time for lodging the application to 23 February 2016.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Tesoriero, Director of Best in the West Tacos 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’). Mr Tesorierosaid that the Agreement does contain some less beneficial terms than the relevant reference instrument, such as no shift or weekend penalties. However, the loaded base rates of pay for full and part-time employees in the Agreement are between 8% and 10% higher than those under the reference instrument and are to be adjusted annually in accordance with the Commission’s Minimum Wage Review decisions. I note that the applicant employs no casual employees. On balance, 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 April 2016, Mr C Agnew, Solicitor appeared with Mr C Tesoriero 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.

[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. I correct a typographical error in the title of the Agreement (cl 1) such as to delete the word ‘Tascos’ and replace it with ‘Tacos’. Accordingly, I approve a single enterprise agreement known as the Best in the West Tacos Pty Ltd - Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 19 April 2016 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

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