Agnew Legal Pty Ltd

[2016] FWCA 1666

[2016] FWCA 1666

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/167)

HOGS ON THE RANGE PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 5 APRIL 2016

Application for approval of the Hogs on the Range 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 Hogs on the Range Pty Ltd - Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 30 employees performing work in the applicant’s restaurant in Toowoomba, Queensland.

[2] The employees were last notified of their representational rights on 15 August 2015, and voting for the Agreement’s approval took place on 11 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 24 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 February 2016. While I note that this falls outside the statutory time limit set out in s 185(3)(a), I consider it fair in all the circumstances to extend the date for filing to 9 February 2016.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Easterman, Director, identified the Restaurant Industry Award 2010 [MA000119]as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Eastermanacknowledged that the Agreement contains some terms that are less beneficial than equivalent terms and conditions in the Award. The Agreement does not provide for penalty rates on weekends or public holidays and removes a number of allowances. However, these lesser benefits are said to have been ‘loaded’ into a higher hourly base rate of pay. 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 2.4.1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 16 March 2016, Mr C Agnew, Solicitorappeared with Mr S Easterman 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 offered an undertaking amending the consultation term to include consultation to changes to regular rosters and ordinary hours of work. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of the 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 Hogs on the Range Pty Ltd - Enterprise Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 23 March 2016 and have a nominal expiry date of 1 June 2018.

DEPUTY PRESIDENT

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