Agnew Legal Pty Ltd

[2014] FWCA 4309

[2014] FWCA 4309

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/1488)

HOGS BREATH CAFÉ NARELLAN - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 8 JULY 2014

Application for approval of the Hogs Breath Cafe Narellan - 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 on behalf of Three Little Pigs Pty Ltd trading as Hogs Breath Cafe Narellan (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 Cafe Narellan - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 24 employees who are engaged in a variety of kitchen and bar duties at the Applicant’s Narellan premises. 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 3 May 2014, and voting for the Agreement’s approval took place on 30 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 14 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 June 2014 thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Hayden, Directoridentified the Restaurant Industry Award 2010 [MA000119] and the Restaurants, &c., Employees (State) Award [AN120468] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Haydensaid while the Agreement does contain some less beneficial terms than the relevant reference instruments, including not providing transfers to lower paid positions in redundancy situations or a supported wage for employees with a disability, the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments. The Agreement provides an increase in loaded rates of between 7 and 13% above the Award. 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 number 2.4, provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 30 June 2014, Mr C Agnew, solicitor appeared for the applicant with Mr R Hayden. 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.

[5] Having heard Mr Agnew’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 Cafe Narellan - Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 7 July 2014 and have a nominal expiry date of 1 June 2017.

DEPUTY PRESIDENT

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