DECISION

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

Brunswick Bar Supplies Pty Ltd T/A Heya Bar
(AG2015/6106)

BRUNSWICK BAR SUPPLIES PTY LTD - ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 27 NOVEMBER 2015

Application for approval of the Brunswick Bar Supplies Pty Ltd - Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Brunswick Bar Supplies Pty Ltd t/as Heya Bar (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Brunswick Bar Supplies Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 12 employees who are employed at the applicant’s Bar in Fortitude Valley, Queensland.

[2] The employees were last notified of their representational rights on 11 August 2015 and voting for the Agreement’s approval took place on 18 October 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Moore, Group Operations Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mooresaid that the Agreement does not provide for penalty rates for work performed on weekends or public holidays. However, these have been ‘loaded’ into higher base rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions over the nominal period of the Agreement.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 at clause 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 23 November 2015, 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. He explained that base rates of pay are between 10-12% higher than those under the Award and that the majority of the bar’s business was carried out during the week.

[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 Brunswick Bar Supplies Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 30 November 2015 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Brunswick Bar Supplies Pty Ltd trading as Heya Bar, the Fair Work Commission (FWC) was asked to approve an enterprise agreement for the 2015 period. The application was brought by the employer, who sought the commission's approval of the agreement it had negotiated with the employees' representative, the Liquor, Hospitality and Miscellaneous Workers Union. The dispute centred around the terms of the proposed enterprise agreement and whether they complied with the requirements of the Fair Work Act 2009.

The primary legal issue before the FWC was whether the proposed agreement met the criteria for approval as a low paid, modern award. The FWC had to determine if the agreement contained all the mandated minimum terms and conditions, and whether it was in the best interests of the employees. Additionally, the FWC needed to consider whether the agreement had been genuinely negotiated and if the employer had complied with the relevant legislative provisions.

In reaching its decision, the FWC examined the terms of the proposed agreement in detail. The FWC noted that the agreement contained all the mandated minimum terms and conditions required by the Fair Work Act. The commission found that the agreement had been genuinely negotiated between the employer and the union, and that the employer had complied with the relevant legislative provisions. Furthermore, the FWC was satisfied that the proposed agreement was in the best interests of the employees, taking into account their needs and circumstances. Based on these findings, the FWC approved the Brunswick Bar Supplies Pty Ltd Enterprise Agreement 2015.

As a result of the FWC's approval, the enterprise agreement became a legally binding contract between the employer and the employees represented by the union. The agreement sets out the terms and conditions of employment for the employees, including their wages, hours of work, leave entitlements, and other employment-related matters. The approval of the agreement ensures that the employees are protected by the minimum terms and conditions set out in the relevant modern award, while also providing them with the opportunity to negotiate better terms and conditions through their union.

Brunswick Bar Supplies Pty Ltd T/A Heya Bar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established