Agnew Legal Pty Ltd

[2015] FWCA 2662

[2015] FWCA 2662

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/648)

MOSINET PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 APRIL 2015

Application for approval of the Mosinet 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 Mosinet Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 28 employees, other than Restaurant Managers, who are employed at the applicant’s franchise coffee shop, known as Dome Cafe, in Banksia Grove, Western Australia. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 6 February 2015, and voting for the Agreement’s approval took place on 11 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 23 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 March 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Lockhart, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Lockhartsaid that the Agreement does include some terms and conditions that are less beneficial than the Awards, including a lack of penalty rates for work performed on weekends and public holidays and the removal of a number of allowances. However, these have been loaded into higher rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at clauses 7.1, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 8 April 2015, Mr C Agnew, Solicitorappeared with Ms S Lockhart 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 Agreement is similar in terms to a number of other enterprise agreements approved in relation to similar franchise businesses. He also offered an undertaking so that the Model Consultation Clause applied. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Mosinet Pty Ltd - Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 15 April 2015 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

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