Berkelouw Leichhardt Pty Limited (ACN 083 773 022) and Cordeaux Creek Pty Ltd (ACN 131 919 232)

[2013] FWCA 1264

[2013] FWCA 1264

FAIR WORK COMMISSION

DECISION

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

Berkelouw Leichhardt Pty Limited (ACN 083 773 022) and Cordeaux Creek Pty Ltd (ACN 131 919 232)
(AG2013/337)

BERKELOUW 1812 - ENTERPRISE AGREEMENT 2012

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 1 MARCH 2013

Application for approval of the Berkelouw 1812 - Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Berkelouw Leichhardt Pty Limited (ACN (083 773 022) and Cordeaux Creek Pty Ltd (ACN 131 919 232) (the ‘applicants’), which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Berkelouw 1812 - Enterprise Agreement 2012 (the ‘Agreement’). The Agreement is to cover 6 employees who are engaged at the applicants’ cafe/book store premises across New South Wales and who are not already covered by the Berkelouw Books - Certified Agreement 2004 [AG838351]. This latter agreement covers the retail staff working at the applicants’ book stores, although I note that this agreement has expired and enterprise agreement negotiations are underway. 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 15 November 2012, and voting for the Agreement’s approval took place on 10 December 2012. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 February 2013. This falls well outside the statutory time limit in s 185(3) of the Act. The applicants’ representative, Mr C Agnew, Solicitor, informed the Commission that this was because he was on annual leave at the relevant time and he was based in Queensland while his client was in New South Wales. He sought an extension of time for filing the application. While I raised some concerns in relation to wage increases due to employees, I find that, subject to undertakings being provided that the wage increases are to be back paid to the six affected employees, it is fair in all the circumstances to grant an extension of time for filing the application to 15 February 2013.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr David Berkelouw, Director of Cordeaux Creek Pty Ltd and authorised person of Berkelouw Leichhardt Pty Ltd, identified the Restaurant Industry Award 2010 [MA000119], the General Retail Industry Award 2010 [MA000004], Restaurant, &C., Employees’ Retail Shops (State) Award [AN120467] and the Shop Employees (State) Award [AN120499] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Berkelouw said that the Agreement does provide for some conditions which are less beneficial than those in the reference instruments, including the removal of a job search entitlement in the event of a termination that is not a redundancy, the removal of a number of allowances and the lack of provision for a minimum break between shifts. However, Mr Berkelouw submitted that the allowances had been absorbed into a significantly higher ‘loaded’ rate of pay. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure at clause 2.5.

[4] At a hearing of the application on 27 February 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 had been satisfied and the Agreement should be approved by FWA. He said that the applicants operate a well known book retailer in Sydney which is in the process of expanding into cafes and bars. They have an existing certified agreement covering retail staff, but this does not cover staff working on licensed premises. Should this venture prove successful, the applicants plan to open bars and/or cafes at some of its other premises.

[5] At the hearing, I noted that the rates of pay under the Agreement are expressed as increasing ‘in accordance with the Annual Wage Review Decisions of the Full Bench of Fair Work Australia’. Mr Agnew agreed to provide the Commission with an undertaking that the difference between the ‘loaded’ rates of pay under the Agreement and the award rates would be maintained. I raised a further concern that the disputes resolution procedure provided only for conciliation by the Commission and not for the ability to make a binding determination of any dispute. Mr Agnew agreed to provide undertakings that would permit the Commission to arbitrate disputes between parties covered by the Agreement. Mr Agnew also agreed to provide undertakings to clarify some minor drafting errors and change references to ‘Fair Work Australia’ to ‘the Fair Work Commission’, together with the undertakings mentioned in para [2] above. Having been provided with these undertakings, I am satisfied that the Agreement meets the Better Off Overall Test. Pursuant to s 191(1) of the Act, these undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’.

[6] Having heard the applicants’ submissions and upon reviewing the terms of the pre-approval 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 190, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Berkelouw 1812 - Enterprise Agreement 2012. Pursuant to s 54 of the Act, the Agreement shall operate from 6 March 2013 and have a nominal expiry date of 1 July 2014.

DEPUTY PRESIDENT

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