Bennelong Enterprises Pty Ltd t/as ARIA

[2016] FWCA 5639

[2016] FWCA 5639

FAIR WORK COMMISSION

DECISION

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

Bennelong Enterprises Pty Ltd t/as ARIA
(AG2016/1667)

BENNELONG ENTERPRISES PTY LTD ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 AUGUST 2016

Application for approval of the Bennelong Enterprises Pty Ltd Enterprise Agreement 2016 - agreement approved.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bennelong Enterprises Pty Ltd (the ‘applicant’) which seeks the approval by the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bennelong Enterprises Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). There were no bargaining representatives involved in the agreement making process. The Agreement is to cover all 71 employees who are engaged in various restaurant roles at Bennelong Enterprises Pty Ltd t/as Aria 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 31 May 2016 and voting for the Agreement’s approval took place on 23 June 2016. The time limits under s 181(2) of the Act are thereby satisfied. Of the 31 employees who cast a valid vote, 17 employees approved the Agreement. The application for approval of the Agreement was lodged on 29 June 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Sarah Maxwell, Group Human Resource Manager, identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Maxwellsaid that permanent and casual adult rates of pay were higher under the agreement than those contained in the reference instrument. Rates of pay are to be annually adjusted to ensure that they remain 3% above the Award rate at all times. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at clause 24 and also provides for consultation terms at clauses 22 and 23. A disputes resolution procedure at clause 24 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 12 August 2016, Mr Daniel Tracey, Workplace Consultant, appeared for the employer. Mr Tracey 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 Tracey referred to indicative rosters of employees to demonstrate that in all circumstances employees will be better off overall when compared with the Award. The rosters disclose that most employees will be 2.5% better off in terms of wage rates than under the Award rates.

[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 Bennelong Enterprises Pty Ltd Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 19 August 2016, and have a nominal expiry date 12 August 2020.

DEPUTY PRESIDENT

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