Agnew Legal Pty Ltd

[2013] FWCA 4573

[2013] FWCA 4573

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2013/1378)

OBSH EMPLOYMENT QLD PTY LTD - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 JULY 2013

Application for approval of the OBSH Employment Qld 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 which, in its capacity as a bargaining representative appointed by the employer, OBSH Employment Qld Pty Ltd, seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the OBSH Employment Qld Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 86 employees who are employed at the employer’s restaurant, commonly known as Outback Steakhouse, in Aspley Queensland. I note that there are no casuals currently working at the restaurant and that the Agreement does not cover Restaurant Managers. 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 25 March 2013, and voting for the Agreement’s approval took place on 18 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot conducted by a returning officer elected by the employees, 48 of the 68 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 June 2013. While I note that this outside the statutory time limit prescribed by s 185(3)(a), considering the relatively short delay in lodging the application and the fact that the employees are already being paid in accordance with the Agreement, I consider it fair in all the circumstances to extend that period to 3 June 2013.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr Manny Rosenberg, Operating Partner, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Rosenbergsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including, the lack of provision a day’s job search entitlement in case of termination, the removal of an entitlement to transfer to lower paid duties in redundancy situations, the removal of a number of non applicable allowances and a lack of provision for casual rates. I note that the employer does not currently employ casual staff and does not intend to employ casual staff in the future. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Award, including higher ‘loaded’ rates of pay, a minimum engagement of four hours for part time employees and jury service leave. Wages are to be increased by 3% on 1 July 2013 and 1 July 2014. 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 by the Commission.

[4] At a hearing of the application on 5 July 2013, Mr C Agnew,Solicitor, appeared 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. He explained that the higher rates of pay are flat rates which take into account all weekend and public holidays and submitted that measured against the Commission’s Minimum Wage Review, the employees were still better off. He also said that when the employer notified its employees of its intention to enter into an enterprise agreement, it invited the employees’ parents to meetings and a large number of them attended. Mr Agnew also subsequently contacted my chambers to request that the Commission accept an undertaking in relation to the Agreement setting out a Supported Wage System that mirrored that under Schedule C of the Award. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the employer’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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the OBSH Employment Qld Pty Ltd - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 12 July 2013 and have a nominal expiry date of 1 December 2014.

DEPUTY PRESIDENT

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