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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Agnew Legal Pty Ltd sought approval of the Best in the West Tacos Pty Ltd - Enterprise Agreement 2015. The applicant, acting on behalf of the employer, requested the Commission to approve the agreement under section 234 of the Fair Work Act 2009. The application was brought in the context of the employer’s desire to finalise and formalise the employment terms with the employees covered by the agreement.

The primary legal issue before the Commission was whether the agreement met the criteria for approval as set out in the Fair Work Act. This involved assessing whether the agreement had been made in accordance with the relevant provisions of the Act, whether it complied with the good faith bargaining requirements, and if it contained appropriate mechanisms for dispute resolution. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage employees and provided for appropriate minimum terms and conditions.

The Commission found that the agreement had been made in good faith, with all parties involved in the bargaining process having adequate opportunity to participate and express their views. The agreement was deemed to be fair and balanced, addressing the needs and concerns of both the employer and the employees. The Commission also noted that the agreement contained provisions for dispute resolution and adhered to the minimum standards prescribed by the Fair Work Act. After careful consideration of all the evidence and submissions, the Commission approved the Best in the West Tacos Pty Ltd - Enterprise Agreement 2015.

The Commission’s decision was guided by the principle that the agreement should facilitate a harmonious workplace and provide a fair framework for the employment relationship. The approval of the agreement was seen as a means to ensure that the terms and conditions of employment were settled in an orderly and legally compliant manner, benefiting both the employer and the employees. The final orders of the Commission included the approval of the enterprise agreement, effective from the date specified in the application.

Agnew Legal Pty Ltd

DECISION

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