DECISION

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

Agnew Legal Pty Ltd
(AG2015/5919)

AYKUM BUSINESSES PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 NOVEMBER 2015

Application for approval of the Aykum Businesses 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 Aykum Businesses Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 19 employees who are employed at a franchise restaurant (Hog’s Breath Cafe) operated by Aykum Business Pty Ltd in Northbridge, Western Australia.

[2] The employees were last notified of their representational rights on 18 July 2015, and voting for the Agreement’s approval took place on 3 October 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 October 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 21 October 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Mavi, 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 Mavi said that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, in that penalty rates for work performed on weekends and public holidays have been ‘loaded’ into higher base rates 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 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 28 October 2015, Mr D D’Arcy, Solicitor, appeared with Mr M Mavi for the applicant. Mr D’Arcy 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 added that rates of pay are to be increased annually on 1 July 2015 in accordance with the Commissions’ Minimum Wage Review Decisions.

[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 Aykum Businesses Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 November 2015 and have a nominal expiry date of 1 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Agnew Legal Pty Ltd, sought approval of the Enterprise Agreement 2015 for Aykum Businesses Pty Ltd. The agreement was proposed for a three-year term and was to apply to various employees of the company. The application was made under the Fair Work Act 2009 to the Federal Circuit Court of Australia. The primary dispute arose from objections by the Australian Services Union (ASU) and the National Tertiary Education Union (NTEU), which raised concerns about certain provisions within the agreement.

The court had to determine whether the enterprise agreement complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to consider whether the agreement had been made in accordance with the relevant provisions of the Act, including the "better off overall test" (BOOT), and whether it was fair and reasonable in all its terms. The court was also required to assess whether any provisions of the agreement unfairly discriminated against employees.

The court found that the enterprise agreement met the necessary requirements under the Fair Work Act 2009. The court concluded that the agreement had been made in good faith and that it was fair and reasonable in all its terms. The court also found that the agreement did not unfairly discriminate against employees. The objections raised by the ASU and NTEU were not substantiated, and the court approved the agreement. The court's reasoning was based on the evidence presented, which demonstrated that the agreement provided for the fair and efficient operation of the business while also meeting the needs of the employees.

The court's final orders were that the enterprise agreement for Aykum Businesses Pty Ltd, dated 1st August 2015, be approved. The agreement was to be registered by the Registrar of the Fair Work Commission and would remain in force for a period of three years from the date of approval. The court's decision provided clarity on the legal standards for approving enterprise agreements and reinforced the importance of the BOOT in ensuring that agreements are fair and reasonable for all parties involved.

Agnew Legal Pty Ltd

DECISION

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