Agnew Legal Pty Ltd

[2014] FWCA 2598

[2014] FWCA 2598

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/829)

HOGS BREATH CAFE GLADSTONE PTY LTD - ENTERPRISE AGREEMENT 2014-2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 APRIL 2014

Application for approval of the Hogs Breath Cafe Gladstone 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’), a Bargaining Representative appointed by Hog’s Breath Cafe Gladstone Pty Ltd (the ‘employer’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Hogs Breath Cafe Gladstone Pty Ltd - Enterprise Agreement 2014-2018 (the ‘Agreement’). The Agreement is to cover 41 employees, other than Restaurant Managers, who are engaged at the applicant’s restaurant in Gladstone, 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 17 March 2014, and voting for the Agreement’s approval took place on 9 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 18 of the 23 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Staines, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Stainessaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on weekends, public holidays and other unsociable hours and the removal of a number of non-applicable allowances. However the Agreement also provides for a number of terms and conditions that are more beneficial, including substantially higher rates of pay. Rates of pay are to be increased by 2.5% on 1 July 2014, 1 July 2015, 1 July 2016 and 1 July 2017. 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 16 April 2014, Mr C Agnew, Solicitorappeared for the applicant and Mr A Staines for the employer. 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. Mr Staines explained that the employer currently only employed casual employees, but planned to offer full-time and part-time positions in the future.

[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 Cafe Gladstone Pty Ltd - Enterprise Agreement 2014-2018.Pursuant to s 54 of the Act, the Agreement shall operate from 23 April 2014 and have a nominal expiry date of 1 March 2018.

DEPUTY PRESIDENT

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