Bay Hogs Pty Ltd t/as Hog's Breath Hervey Bay

[2013] FWCA 1775

[2013] FWCA 1775

FAIR WORK COMMISSION

DECISION

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

Bay Hogs Pty Ltd t/as Hog's Breath Hervey Bay
(AG2013/565)

BAY HOGS PTY LTD - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 2 APRIL 2013

Application for approval of the Bay Hogs Pty Ltd - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bay Hogs Pty Ltd t/as Hog’s Breath Hervey Bay (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bay Hogs Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 22 employees who are employed at the applicant’s restaurant in Hervey Bay, Queensland, commonly known as ‘Hog’s Breath Cafe’. The Agreement is expressed to cover employees of the applicant employed in Queensland. The Agreement is similar to others which have recently been approved by other members of the Commission. See: Platinum Pigs Pty Ltd - Enterprise Agreement 2012 [AE899490]; Mt Gravatt Hogs Pty Ltd - Enterprise Agreement 2012 [AE897679]; and Gregnik Investments Pty Ltd as Trustee for the Wood Family Trust - Enterprise Agreement 2011-2012 [AE887928].

[2] The employees were last notified of their representational rights on 22 September 2012, and voting for the Agreement’s approval took place on 8 March 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by a returning officer nominated by the employees, 11 of the 13 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 March 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr H Campbell, Director identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Campbellsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a number of allowances which have been loaded into a higher rate of pay, the reduction of an entitlement to paid rest/meal breaks and the reduction of overtime entitlements. However the Agreement also provides for a higher base rates of pay and the codification of warning and stand-down procedures. 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 7.4 respectively, and a disputes resolution procedure 2.4 provides for conciliation by the Commission and arbitration by the Commission where the parties agree.

[4] At a hearing of the application conducted by telephone on 15 March 2013, Mr C Agnew, Solicitor,appeared 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. However, he drew attention to the fact that the Agreement was negotiated in May 2012 and that the rates of pay under the Agreement had not been adjusted to reflect the Fair Work Commission Annual Minimum Wage Review of 2012. Mr Agnew offered to provide an undertaking to remedy this defect. Pursuant to s 191(1) of the Act, this undertaking is taken to be a term of the Agreement. A copy of the 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 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Bay Hogs Pty Ltd - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 22 March 2013 and have a nominal expiry date of 1 December 2015.

DEPUTY PRESIDENT

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