Agnew Legal Pty Ltd Summary

[2016] FWCA 1662

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Agnew Legal Pty Ltd
(AG2016/252)
HOGS BREATH CAFE EATON PTY LTD - ENTERPRISE
AGREEMENT 2015
Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2016

Application for approval of the Hogs Breath Cafe Eaton 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

Breath Cafe Eaton Pty Ltd - Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is

to cover 50 employees who are employed at the applicant’s restaurant in Eaton, Western

Australia.

[2] The employees were last notified of their representational rights on 20 November

2015, and voting for the Agreement’s approval took place on 14 December 2015. The time

limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 18 of the employees

agreed to approve the Agreement. The application for approval of the Agreement was lodged

on 31 January 2016. While I note that this falls outside the statutory time period contemplated

in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for

lodgement to 31 January 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Gupta,

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 Gupta
[2016] FWCA 1662

said that the Agreement does provide for some terms that are less beneficial than those under

the Award, in that it does not provide for penalty rates on weekends and public holidays and

removes a number of allowances. However, these have been ‘loaded’ into the hourly rate of

pay in compensation of the Award penalties. 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, 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.

[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. Accordingly, I approve a single enterprise agreement known as

the Hogs Breath Cafe Eaton 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

January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Agnew Legal Pty Ltd, the applicant sought approval from the Fair Work Commission for a single enterprise agreement known as the Hogs Breath Cafe Eaton Pty Ltd - Enterprise Agreement 2015. The Agreement, which was intended to cover 50 employees of the applicant’s restaurant in Eaton, Western Australia, was approved by 18 out of the 50 eligible employees in a secret ballot held on 14 December 2015. The application for approval was lodged on 31 January 2016. The Deputy President, Sam, was tasked with determining whether the application should be approved, considering the statutory requirements and the specific circumstances of the case.

The primary legal issues before the court were whether the application for approval of the Agreement complied with the provisions of the Fair Work Act 2009 and whether the Agreement met the Better Off Overall Test (BOOT). The Deputy President had to assess whether the Agreement satisfied the legislative requirements for approval, including the provisions related to employee notification, the voting process, and the Better Off Overall Test. Additionally, the Deputy President had to determine whether the Agreement contained the mandatory flexibility and consultation terms, as well as a disputes resolution procedure.

In making the decision, the Deputy President noted that while the application for approval was lodged outside the statutory time period, it was fair to extend the date for lodgement under section 185(3)(b) of the Act. The Deputy President was satisfied that the applicant had provided adequate information to demonstrate that the Agreement satisfied the BOOT, as the less beneficial terms had been compensated for by adjustments to the hourly rate of pay. The Deputy President also found that the Agreement included the mandatory flexibility and consultation terms, as well as a disputes resolution procedure. Upon reviewing the terms of the preapproval process documentation and the Agreement itself, the Deputy President concluded that all of the requirements of the Act had been met.

The Deputy President approved the Hogs Breath Cafe Eaton Pty Ltd - Enterprise Agreement 2015, which shall operate from 23 March 2016 and have a nominal expiry date of 1 January 2018. This decision ensures that the Agreement, which has been approved by the majority of the employees, will be implemented and will provide the necessary framework for the operation of the restaurant in accordance with the Fair Work Act 2009.

Agnew Legal Pty Ltd

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