Agnew Legal Pty Ltd

[2015] FWCA 4635

[2015] FWCA 4635

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/3124)

CREMA JD PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the Crema JD 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 Crema JD Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 10 employees who are employed at the applicant’s franchise coffee shop, commonly known as Dome Coffee in Joondalup, Western Australia.

[2] The employees were last notified of their representational rights on 23 February 2015 and voting for the Agreement’s approval took place on 26 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 7 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 June 2015. While I note that this is significantly outside of the statutory time limit set out in s 185(3)(a), I consider it fair in all the circumstances, noting in particular that the employees are already being paid in accordance with the Agreement, to extend the date for lodgement to 24 June 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Vigh, 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 Vighsaid that the Agreement does provide for 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. Rates of pay are to be adjusted 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 7.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 6 July 2015, Mr C Agnew, Solicitorappeared 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 base rates of pay are between 7 and 11% higher than those under the reference instrument and noted in particular that the coffee shop does not operate late into the evening.

[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 Crema JD Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 13 July 2015 and have a nominal expiry date of 1 March 2019.

DEPUTY PRESIDENT

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