Anjomar Pty Ltd ATF Andrew Marrone Family Trust t/as Caffe Primo Morphett Vale

[2014] FWCA 1655

FAIR WORK COMMISSION

DECISION

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

Anjomar Pty Ltd ATF Andrew Marrone Family Trust t/as Caffe Primo Morphett Vale
(AG2014/438)

ANJOMAR PTY LTD ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 MARCH 2014

Application for approval of the Anjomar Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Anjomar Pty Ltd ATF Andrew Marrone Family Trust t/as Caffe Primo Morphett Vale (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Anjomar Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with two Employee Bargaining Representatives. The Agreement is to cover 20 employees who are employed at the applicant’s restaurant in Morphett Vale, South Australia.

[2] The employees were last notified of their representational rights on 13 January 2014, and voting for the Agreement’s approval took place on 14 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 13 of the 15 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Marrone, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Cafe and Restaurants (South Australia) Award [AN150025] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Marronesaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this was not strictly true as the Agreement provides higher Monday-Friday base rates of pay and a ‘loaded’ rate of pay for work performed ‘at other times’ on weekends and public holidays. Penalty rates are not expressly provided for. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 March 2014, Mr C Cini of Mediation and Employment Relations Services appeared with Mr A Marrone for the applicant and Ms M Rios appeared in her capacity as an Employee Bargaining Representative. Mr Cini 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 applicant had undertaken calculations which demonstrated that employees would be better off under the pay structure proposed under the Agreement. Ms Rios supported the submissions of the applicant and indicated that she was happy with the Agreement.

[5] Having heard the parties’ 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 Anjomar Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 14 March 2014 and have a nominal expiry date of 13 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Anjomar Pty Ltd, trading as Caffe Primo Morphett Vale, and its employees represented by the Shop, Distributive and Allied Employees’ Association of Australia. The dispute was regarding the application for the approval of the Anjomar Pty Ltd Enterprise Agreement 2014. The matter was heard in the Fair Work Commission. The primary issue before the commission was whether the enterprise agreement in question complied with the requirements of the Fair Work Act 2009. Specifically, the commission had to consider whether the agreement had been fairly negotiated, if it covered the necessary minimum terms, and whether it adhered to the provisions of the Fair Work Act. The negotiation process and the content of the agreement were under scrutiny to ensure it met the statutory standards.

The Fair Work Commission examined the evidence presented regarding the negotiation process, which included testimonies from the parties involved and documentary evidence. The commission assessed whether the bargaining was conducted in good faith and whether the agreement was genuinely negotiated between the employer and the employees’ representative. Additionally, the commission considered the substantive terms of the agreement, ensuring they included the minimum entitlements prescribed by the Fair Work Act, such as minimum wages, penalty rates, and leave provisions. The commission also evaluated if the agreement contained any terms that were contrary to public policy or were otherwise invalid.

After thorough consideration of the evidence and arguments presented, the Fair Work Commission determined that the Anjomar Pty Ltd Enterprise Agreement 2014 was fairly negotiated and complied with the statutory requirements. The commission found that the agreement covered all the necessary minimum terms and did not contain any invalid provisions. Consequently, the commission approved the application for the approval of the enterprise agreement. The decision was made in the interest of maintaining fair and harmonious industrial relations between the employer and its employees.

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