Agnew Legal Pty Ltd

[2017] FWCA 506

[2017] FWCA 506

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2016/7946)

HB SUNNY COAST - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JANUARY 2017

Application for approval of the HB Sunny Coast - 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 FN 63 Pigs Pty Ltd t/a Hogs Breath (the ‘applicant’), which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the HB Sunny Coast - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 31 employees who are employed at the applicant’s restaurants in Caloundra and Mooloolaba, Queensland.

[2] The employees were last notified of their representational rights on 31 October 2016, and voting for the Agreement’s approval took place on 27 November 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 28 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 December 2016. While this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair, in all the circumstances, to extend the date for lodgement to 21 December 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17), Mr M Carroll, 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 Carroll 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. Mr Carroll also 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, as well as reduced overtime penalties.

[4] At a hearing of the application on 17 January 2017, Mr C Agnew appeared with Mr M Carroll 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 rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions and that the increase in July 2016 had already been passed onto the employees. Mr Carroll explained the operating hours of the business - he said the kitchen closes at 9-9.20pm every day and the last employee leaves at 10-10.30pm. He further explained that the business operates 7 days per week and he rotates employees’ shifts to ensure 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] 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, 188 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the HB Sunny Coast - Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 24 January 2017 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

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