Arbory Pty Ltd t/as Arbory

[2015] FWCA 6023

[2015] FWCA 6023

FAIR WORK COMMISSION

DECISION

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

Arbory Pty Ltd t/as Arbory
(AG2015/4662)

ARBORY ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 1 SEPTEMBER 2015

Application for approval of the Arbory Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Arbory Pty Ltd t/as Arbory (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Arbory Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 47 employees, other than executive and managerial employees who are employed at the applicant’s restaurant in Melbourne, Victoria. 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 2 July 2015 and voting for the Agreement’s approval took place between 24 and 31 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 25 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Shelmerdine identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Shelmerdinesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of penalty rates and allowances. However these have been ‘loaded’ into higher base rates of pay and the Agreement also provides for shorter spans of hours throughout the week and the provision of a free meal for each shift of five hours or longer. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 43 and 44 respectively, and a disputes resolution procedure at clause 36 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 28 August 2015, Ms H Lee, Solicitorappeared with Mr R Shelmerdine for the applicant. Ms Lee 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. In particular, Ms Lee stated that the applicant had undertaken a comparison between the Award and the Agreement based on indicative rosters which that the employees were better off overall under the Agreement.

[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 Arbory Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 September 2015 and have a nominal expiry date of 3 September 2019.

DEPUTY PRESIDENT

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