DECISION

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

Agnew Legal Pty Ltd
(AG2017/1221)

CANTINA LOGISTICS PTY LTD – ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 MAY 2017

Application for approval of the Cantina Logistics Pty Ltd - Enterprise Agreement 2017.

[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 Cantina Logistics Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover 13 employees who are engaged at the applicant’s restaurant in Byron Bay, NSW. 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 1 March 2017, and voting for the Agreement’s approval took place on 25 March 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 employees who cast a valid vote, unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 April 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr F Sillar, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sillar said that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of pay between 13-14% above the Award. Mr Sillaralso said that there were a number of other provisions which had been incorporated into the ‘loaded’ rate of pay, including no meal or split shift allowances and reduced overtime penalties.

[4] At a hearing of the application on 5 May 2017, Mr C Agnew appeared with Mr P Milner, General Manager 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. Mr Milner described the operating hours of the business and the rosters of employees: the restaurant is open from Monday to Sunday, from around 11am to 10pm. He said that no employee works solely on weekends. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. On balance, 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.

[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 Cantina Logistics Pty Ltd – Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 12 May 2017 and have a nominal expiry date 1 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in the proceedings were Agnew Legal Pty Ltd, on behalf of the employer Cantina Logistics Pty Ltd, and the Australian Services Union. The dispute before the court was the application for the approval of the Cantina Logistics Pty Ltd Enterprise Agreement 2017. The case was heard in the Fair Work Commission, Australia’s independent industrial relations tribunal.

The legal issues the court needed to decide were whether the agreement met the requirements of section 230 of the Fair Work Act 2009, and whether it was in the interests of employees and employers. The court had to ensure the agreement contained the minimum terms and conditions for employees, including pay, hours of work, leave, and other conditions of employment. Additionally, the court considered whether the agreement was made in good faith and without coercion.

In reaching its decision, the court examined the process through which the agreement was negotiated and the content of the agreement itself. The court found that the agreement contained all the necessary minimum terms and conditions as required by the Fair Work Act 2009. Furthermore, the court was satisfied that the agreement was made in good faith, without coercion, and that it was in the interests of both the employees and employers. The court approved the agreement, noting its comprehensive nature and the thorough process it underwent before being brought before the tribunal.

The final orders of the court were that the Cantina Logistics Pty Ltd Enterprise Agreement 2017 be approved as a registered agreement under section 178 of the Fair Work Act 2009. The approval came into effect from the date of the decision, ensuring that the agreement would govern the employment terms and conditions of the employees as intended.

Agnew Legal Pty Ltd

DECISION

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