Agnew Legal Pty Ltd

[2014] FWCA 1006

[2014] FWCA 1006

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2014/110)

KELLETT PARTNERS PTY LTD - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 10 FEBRUARY 2014

Application for approval of the Kellett Partners Pty Ltd - Enterprise Agreement 2013.

[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 Kellett Partners Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 15 employees, apart from Restaurant Managers, who are employed at the applicant’s restaurant (‘Peasant’) and cafe/bar (‘Cabiria’) in Paddington, 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 6 November 2013, and voting for the Agreement’s approval took place on 20 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 January 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Melachroinos identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Melachroinossaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and public holidays, the removal of a number of allowances and lack of provision of a job search entitlement in terminations not involving redundancy. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including significantly higher loaded rates of pay and longer minimum engagements for part time employees. Rates of pay are to be increased by 3% on 1 July 2014, 1 July 2015 and 1 July 2016. 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 31 January 2014, Mr C Agnew, Solicitor, appeared with Mr D Melachroinos 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 the Agreement was similar to an enterprise agreement recently approved by the Commission and which covers a restaurant not far from Peasant and Cabiria; See: Kellett Street Pty Ltd t/as Libertine Bar and Restaurant [2013] FWCA 7599. Peasant and Cabiria are based in an area of Brisbane with a high density of retail shops and bars which tended to be popular Monday to Friday due to sporting fixtures in the proximity.

[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 Kellett Partners Pty Ltd - Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 7 February 2014 and have a nominal expiry date of 1 December 2016.

DEPUTY PRESIDENT

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