Ballarat Schnitzels Pty Ltd atf The Ballarat Schnitzels Unit Trust t/as Schnitz - Ballarat (Sturt Street)

[2016] FWCA 1417

[2016] FWCA 1417

FAIR WORK COMMISSION

DECISION

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

Ballarat Schnitzels Pty Ltd atf The Ballarat Schnitzels Unit Trust t/as Schnitz - Ballarat (Sturt Street)
(AG2016/2015)

BALLARAT SCHNITZELS PTY LTD ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 3 MARCH 2016

Application for approval of the Ballarat Schnitzels Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ballarat Schnitzels Pty Ltd atf The Ballarat Schnitzels Unit Trust t/as Schnitz – Ballarat (Sturt Street) (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Ballarat Schnitzels Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 47 employees who are employed at the applicant’s franchise restaurant in Ballarat, Victoria.

[2] The employees were last notified of their representational rights on 2 December 2015 and voting for the Agreement’s approval took place on 29 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 22 of the 24 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 January 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D de Vries, Franchisee, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr de Vriessaid that the Agreement does not provide for terms and conditions more or less beneficial than the Award. However, this is not strictly true, as the Agreement provides for three separate schedules with differing base rates of pay and penalty rates. Rates of pay are to be increased by 2.5% on 1 July 2016, 1 July 2017 and 1 July 2018. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 30 and 32 respectively, and a disputes resolution procedure at clause 31 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 3 March 2016, Mr D de Vries appeared for the applicant. Mr de Vries 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. Mr de Vries also offered an undertaking to ensure that junior rates of pay would not fall below those under the applicable Award. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Ballarat Schnitzels Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 10 March 2016 and have a nominal expiry date of 9 March 2020.

DEPUTY PRESIDENT

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