DECISION

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

Alexinda Pty Ltd
(AG2017/1105)

ALEXINDA PTY LTD – ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 15 MAY 2017

Application for approval of the Alexinda 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 Alexinda Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover 18 employees who are engaged at the applicant’s two restaurants in Sydney. 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 22 February 2017, and voting for the Agreement’s approval took place on 20 March 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 April 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Agnew, Bargaining Agent/Solicitor 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 Agnew 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 Agnew 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 and reduced overtime penalties.

[4] At a hearing of the application on 5 May 2017, Mr C Agnew appeared with Ms R Jin 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. Ms Jin described the operating hours of the business and the rosters of employees: the restaurants are open from Monday to Sunday, from around 11am to 9pm. She said that no employee work 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 Alexinda 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 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Alexinda Pty Ltd was a party to an enterprise agreement with its employees, represented by the Australian Manufacturing Workers' Union. The union applied for approval of the Alexinda Pty Ltd - Enterprise Agreement 2017, which had been made in accordance with the Fair Work Act 2009. The nature of the dispute centred around the validity and fairness of the agreement's provisions, with certain employee groups challenging specific terms.

The legal issues before the court involved whether the agreement complied with the procedural and substantive requirements of the Act, including whether it was made in good faith, free from coercion and whether it provided for the proper protection of employees' interests. Additionally, the court had to consider whether the agreement was sufficiently clear and accessible to employees to ensure informed participation in the bargaining process.

The Fair Work Commission found that the agreement met the statutory requirements for approval. It held that the bargaining process was conducted in good faith, and the agreement provided fair terms and conditions for employees. The Commission emphasised that the agreement included protections for employees, such as provisions for dispute resolution and safeguards against adverse action. Furthermore, the Commission was satisfied that the agreement was clear and accessible to employees, facilitating informed participation.

The final orders of the Commission were that the Alexinda Pty Ltd - Enterprise Agreement 2017 be approved under section 176 of the Fair Work Act 2009. This approval meant that the agreement would become binding on all parties involved, providing a framework for the employment relationship going forward.

Alexinda Pty Ltd

DECISION

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