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

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved Agnew Legal Pty Ltd, who applied for the approval of the Hogs Breath Northlakes Pty Ltd - Enterprise Agreement 2014. This agreement was intended to govern the employment conditions of certain workers at Hogs Breath Northlakes Pty Ltd, a restaurant and entertainment complex. The application raised questions regarding whether the agreement met the necessary standards under the Fair Work Act 2009, particularly in relation to minimum wages, entitlements, and other employment conditions. The Commission was tasked with assessing the fairness and validity of the proposed agreement.

The primary legal issues addressed by the Commission were whether the enterprise agreement provided for the payment of minimum wages and entitlements, and if it included provisions that were not contrary to the provisions of the Fair Work Act. Specifically, the Commission needed to determine if the agreement was genuinely negotiated, met the "better off overall test" (BOOT), and did not contain any unfair terms that would render it void under the Act. The Commission also considered whether the agreement complied with the procedural requirements, such as the need for genuine bargaining between the employer and the employees.

In reaching its decision, the Commission examined the evidence provided by both parties, including witness testimonies and documentation related to the negotiation process. The Commission found that the agreement had been genuinely negotiated and met the BOOT, as the employees were better off overall when compared to the applicable award conditions. The Commission also determined that the agreement did not contain any terms that were unfair or contrary to the Fair Work Act. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with all statutory requirements.

The Fair Work Commission approved the Hogs Breath Northlakes Pty Ltd - Enterprise Agreement 2014, subject to the conditions set out in the approval order. The agreement was deemed to be genuinely negotiated, met the better off overall test, and did not contain any unfair terms. The Commission further directed that the agreement would come into effect on a specified date and would remain in force for the duration prescribed within the agreement. This decision provided certainty and stability to the employment conditions at Hogs Breath Northlakes Pty Ltd.

Agnew Legal Pty Ltd

DECISION

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