Agnew Legal Pty Ltd

[2015] FWCA 890

[2015] FWCA 890

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/10531)

ASAR ASAR PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 5 FEBRUARY 2015

Application for approval of the Asar Asar 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 Asar Asar Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 13 employees who are employed at the applicant’s restaurant in South Brisbane.

[2] The employees were last notified of their representational rights on 5 August 2014, and voting for the Agreement’s approval took place on 24 September 2014. 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 December 2014. While I note that this is well outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to grant an extension of time for lodgement to 24 December 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Bickle, 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 Bicklesaid 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 the removal of 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 instruments, 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 73 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation and arbitration by the Commission. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[4] At a hearing of the application on 3 February 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 explaned that the restaurant was a steakhouse in the Southbank area of Brisbane and that it only trades on weekdays and up to midnight on Fridays.

[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 Asar Asar Pty Ltd - Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 10 February 2015 and have a nominal expiry date of 1 July 2018.

DEPUTY PRESIDENT

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