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

Printed by authority of the Commonwealth Government Printer

Agnew Legal Pty Ltd, a company registered under the Corporations Act, sought approval of an Enterprise Agreement (the EA) for Hogs on the Range Pty Ltd. The dispute centred on the fairness and compliance of the EA with the Fair Work Act 2009. The case was heard in the Fair Work Commission, with the decision authored by Commissioner M. O’Brien. The primary legal issue was whether the EA met the requirements for "in good faith" negotiation and whether it contained unfair provisions. The fairness of the EA was evaluated against the statutory criteria outlined in the Fair Work Act, including the consideration of procedural fairness, the process of negotiation, and the content of the agreement itself.

Commissioner O’Brien found that the negotiation process was conducted in good faith and that the EA was not unfair. The Commissioner noted that the parties had engaged in extensive bargaining, and there was evidence of a genuine attempt to reach an agreement that was fair and reasonable. The Commissioner also concluded that the provisions of the EA did not unfairly discriminate against any class of employees, nor did they undermine the ability of employees to exercise their workplace rights. The Commissioner emphasised the importance of the parties' conduct in the negotiation process and found that there was no evidence to suggest that the EA was not the product of genuine and good faith bargaining.

In light of the Commissioner's findings, the application for approval of the EA was successful. The Fair Work Commission approved the Hogs on the Range Pty Ltd - Enterprise Agreement 2015, recognising it as a genuine agreement that met the statutory requirements of the Fair Work Act. The Commissioner's decision was based on a comprehensive review of the negotiation process and the content of the EA, affirming that it was a fair and reasonable agreement. This decision provides clarity for employers and employees regarding the standards expected in enterprise bargaining and the factors considered by the Commission in approving such agreements.

Agnew Legal Pty Ltd

DECISION

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