DECISION

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

Agnew Legal Pty Ltd
(AG2015/6107)

ELEGANT GROUP - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 20 NOVEMBER 2015

Application for approval of the Elegant Group - 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 Elegant Group – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 33 employees who are employed at two franchise restaurants, known as Guzman y Gomez in Wagga Wagga and Bondi Junction, New South Wales.

[2] The employees were last notified of their representational rights on 15 September 2015, and voting for the Agreement’s approval took place on 21 October 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 20 of the 25 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 November 2015. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 9 November 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr MD Al-Amin, 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 Al-Aminsaid that the Agreement does provide for some terms that are less beneficial than those under the Award, in that the Agreement most notably does not provide for penalty rates for work performed on weekends or public holidays. However, these have been ‘loaded’ into higher rates of pay. On balance, I am satisfied that the Agreement passes the BOOT. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 18 November 2015, Mr C Agnew, Solicitor,appeared with Mr MD Al-Amin 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 explained that the ‘loaded’ base rates of pay under the Agreement are 12% higher than those under the Award.

[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 Elegant Group – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 25 November 2015 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Agnew Legal Pty Ltd, the Fair Work Commission was called upon to consider an application for the approval of the Elegant Group - Enterprise Agreement 2015. The application was brought by the employer, Agnew Legal Pty Ltd, who sought the Commission's approval of the agreement negotiated with the employees represented by the Australian Services Union. The dispute centred around whether the agreement complied with the requirements of the Fair Work Act 2009, specifically concerning the procedural fairness and the coverage of the agreement.

The primary legal issues the Commission needed to address were whether the process of bargaining and the agreement itself adhered to the statutory requirements under the Fair Work Act. This involved scrutinising the fairness of the bargaining process and the content of the agreement, including its coverage, to ensure it met the criteria for being a "better-off-overall-test" (BOOT) agreement. Additionally, the Commission had to determine whether the agreement appropriately balanced the interests of both the employer and the employees.

The Fair Work Commission determined that the bargaining process was fair and that the agreement complied with the statutory requirements. The Commission found that the agreement met the BOOT criteria, as it was likely to be better for the employees than the applicable awards or other enterprise agreements. Furthermore, the Commission held that the agreement appropriately balanced the interests of both parties. Consequently, the Commission approved the Elegant Group - Enterprise Agreement 2015, subject to the conditions outlined in the decision. This decision affirmed the validity and enforceability of the agreement between the employer and the union.

Agnew Legal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established