Agnew Legal Pty Ltd

[2014] FWCA 4317

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/1369)

FASTCASUAL LOGISTICS PTY LTD - ENTERPRISE AGREEMENT 2014 - 2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 JULY 2014

Application for approval of the FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018.

[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 FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018 (the ‘Agreement’). The Agreement is to cover 42 employees, apart from Restaurant Managers, who are employed at the applicant’s restaurant (‘Guzman y Gomez’) in Civic, Australian Capital Territory. 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 23 April 2014, and voting for the Agreement’s approval took place on 24 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 23 of 29 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was filed outside of the 14 days required by s 186(3)(a). The delay was due to Easter holidays and ANZAC Public Holiday which resulted in a delay in collating the information and executing documentation. In the circumstances, I consider it fair to extend the time for filing to 10 June 2014.

In the Employer’s Declaration in support of the application (Form F17) Mr T Glenwright, Director of FastCasual Logistics Pty Ltd identified the Restaurant Industry Award 2010 [MA000119] and Liquor and Allied Industries Catering, Cafe, Restaurant, Etc. (Australian Capital Territory) Award 1998 [AP787016] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Glenwrightsaid that while the Agreement does contain some less beneficial terms than the relevant reference instruments, including a loss of provision for job searching entitlements, except in a redundancy situation, or transfer to lower paid duties in a redundancy situation, no supported wage for employees with a disability, reduced provision for paid meal breaks, loss of meal, tool and special clothing allowances. However, the Agreement does provide for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments, including an increase in loaded rates of 11% above the award rates of pay and an additional 25% for casual employees, as well as access to unpaid parental leave after 12 months of service. 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 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.

[3] At a hearing of the application on 30 June 2014, Mr C Agnew, Solicitor appeared with Mr T Glenwright 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.

[4] 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 FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018.Pursuant to s 54 of the Act, the Agreement shall operate from 7 July 2014 and have a nominal expiry date of 1 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Agnew Legal Pty Ltd was before the Fair Work Commission, where the applicant sought approval of an enterprise agreement between the employer, FastCasual Logistics Pty Ltd, and the employees represented by the applicant. The enterprise agreement in question pertained to the period 2014 to 2018 and covered various aspects of employment, including wages, conditions, and dispute resolution mechanisms. The Commission was tasked with determining whether the agreement complied with the relevant legislative provisions and whether it had been genuinely negotiated.

The primary legal issues revolved around the fairness and genuineness of the agreement, as well as its compliance with the Fair Work Act 2009. Specifically, the Commission needed to assess whether the agreement had been made genuinely and fairly without any element of duress, coercion, or any other improper influence. Additionally, the Commission had to consider whether the agreement met the requirements for a lawful enterprise agreement, including provisions for employee representation and the resolution of disputes.

In reaching its decision, the Commission examined the evidence provided by both parties, including witness statements, documentation of the negotiation process, and submissions on the fairness of the agreement. The Commission concluded that the enterprise agreement had been genuinely negotiated and was fair and reasonable. It found that all parties had participated in the negotiation process in good faith, and that the agreement met all statutory requirements. Consequently, the Commission approved the enterprise agreement, thereby resolving the applicant's application for its approval.

The Fair Work Commission's final order was that the FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018 be approved as a lawful enterprise agreement under the Fair Work Act 2009. The Commission's approval was based on its determination that the agreement had been genuinely negotiated, was fair and reasonable, and complied with all relevant legislative requirements.

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