Agnew Legal Pty Ltd

[2015] FWCA 6219

[2015] FWCA 6219

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/4514)

PIG OUT PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2015

Application for approval of the Pig Out 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 Pig Out Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 18 employees who are employed at the applicant’s franchise restaurant, known as Hog’s Breath Cafe, in Terrigal, New South Wales.

[2] The employees were last notified of their representational rights on 13 June 2015, and voting for the Agreement’s approval took place on 6 August 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 7 of the 8 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 September 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 time for lodgement to 2 September 2015.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Scott, 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 Scottsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, in that the Agreement does not provide for penalty rates for work performed on weekends, public holidays and during unsociable hours. However, these have been ‘loaded’ into higher base rates of pay. Rates of pay are to be increased over the nominal period of the Agreement in accordance with the Commission’s Minimum Wage Review Decisions. 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 8 September 2015, 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. Mr Agnew explained that the base rates of pay were approximately 12% higher than those in 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 Pig Out Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 15 September 2015 and have a nominal expiry date of 1 March 2018.

DEPUTY PRESIDENT

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