Agnew Legal Pty Ltd

[2017] FWCA 676

[2017] FWCA 676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Agnew Legal Pty Ltd
(AG2017/27)

HUNTER HOGS PTY LTD - ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 1 FEBRUARY 2017

Application for approval of the Hunter Hogs Pty Ltd - Enterprise Agreement 2016.

[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 Hunter Hogs 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 Hunter Hogs Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 41 employees who are engaged in the applicant’s restaurant in Nelson 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 11 November 2016, and voting for the Agreement’s approval took place on 23 December 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 16 of the 18 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 January 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr W Homewood, Director identified the Restaurant Industry Award [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Homewood 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, 11-12% above the Award. Mr Homewoodalso 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 25 January 2017, Mr C Agnew, Solicitorappeared for the applicant with Mr Homewood. 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. No casual employees are engaged. Mr Homewood said that the operating hours of the business were that the restaurant is open from 11am to 10pm every day. He further explained that the employees’ rosters are such that the majority of shifts are performed during the week. 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] Mr Agnew explained the circumstances underpinning this application; the restaurant, previously owned by Team Hog Pty Ltd was sold to Hunter Hogs Pty Ltd in 2016. Team Hog Pty Ltd was previously covered by an enterprise agreement entitled the Team Hog Pty Ltd - Enterprise Agreement 2016 [PR581453]. To the extent of any inconsistency between wage rates in the two agreements, Mr Agnew said the higher rates will be paid to transferring employees. Further, that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[6] 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 Hunter Hogs Pty Ltd - Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 1 February 2017 and have a nominal expiry date 1 August 2020.

DEPUTY PRESIDENT

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