Agnew Legal Pty Ltd

[2015] FWCA 4739

[2015] FWCA 4739

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/3185)

RE & R TURLEY HOLDINGS PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JULY 2015

Application for approval of the RE & R Turley Holdings Pty Ltd - Enterprise Agreement 2014.

[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 RE & R Turley Holdings Pty Ltd – Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 24 employees who are employed at the applicant’s franchise coffee shop, commonly known as Dome Coffee in Butler, Western Australia.

[2] The employees were last notified of their representational rights on 5 November 2014, and voting for the Agreement’s approval took place on 2 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 8 of the 13 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 June 2015. While I note that this is 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 29 June 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Turley, 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 Turleysaid 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 removes a number of allowances. However, these 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 7.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 10 July 2015, Mr C Agnew 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. He explained that Rates of pay are to be adjusted in accordance with the Commission’s 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 RE & R Turley Holdings Pty Ltd - Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 17 July 2015 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

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