Agnew Legal Pty Ltd

[2015] FWCA 1615

[2015] FWCA 1615

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/284)

HOGS BREATH NORTHLAKES PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 10 MARCH 2015

Application for approval of the Hogs Breath Northlakes 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 Hogs Breath Northlakes Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 56 employees, other than Restaurant Managers, who are employed at a recently opened franchise restaurant in Northlakes, Mango Hill, Queensland. 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 10 November 2014, and voting for the Agreement’s approval took place on 31 January 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 42 of the 56 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 February 2015. While I note that this is outside of 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 16 February 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Sisson, 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 Sissonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of a job search entitlement where an employee is terminated in circumstances other than redundancy, the removal of a number of allowances and penalty rates for work performed on weekends, public holidays and at unsociable hours. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instrument, including higher loaded base rates of pay and higher duties allowances to be paid on all hours worked at the higher level. 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 26 February 2015, Mr C Agnew, Solicitorappeared with Mr J Sisson 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 Hogs Breath Northlakes Pty Ltd - Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 5 March 2015 and have a nominal expiry date of 1 March 2016.

DEPUTY PRESIDENT

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