Buffalo Partnership Pty Ltd t/as Chur Burger Brisbane

[2014] FWCA 6953

FAIR WORK COMMISSION

DECISION

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

Buffalo Partnership Pty Ltd t/as Chur Burger Brisbane
(AG2014/7516)

BUFFALO PARTNERSHIP PTY LTD ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

Application for approval of the Buffalo Partnership Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Buffalo Partnership Pty Ltd t/as Chur Burger Brisbane (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Buffalo Partnership Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 30 employees who are employed at the applicant’s licensed burger bar in Fortitude Valley, Queensland.

[2] The employees were last notified of their representational rights on 12 August 2014, and voting for the Agreement’s approval took place on 4 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 16 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Jones, Manager, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Jonessaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Modern Award, including the removal of minimum breaks between shifts and no penalty rates for work performed on weekends and public holidays. However the Agreement provides for higher ‘loaded’ rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 1 October 2014, Mr D D’Arcy, Solicitorappeared with Mr M Jones for the applicant. Mr D’Arcy 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 D’Arcy explained that the ‘loaded’ base rates of pay are 16% higher than under the Modern Award for permanent employees and 41% higher for casual employees. Rates of pay are to be increased by 3% on 1 July 2015.

[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 Buffalo Partnership Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 8 October 2014 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Buffalo Partnership Pty Ltd, trading as Chur Burger Brisbane, applied for the approval of the Buffalo Partnership Pty Ltd Enterprise Agreement 2014. The application was heard in the Fair Work Commission. The dispute centred on the terms of the proposed enterprise agreement and whether it complied with the requirements of the Fair Work Act 2009.

The legal issues the court had to decide included whether the agreement covered the appropriate bargaining unit, whether the agreement complied with the provisions of the Fair Work Act, and whether the agreement was in the best interests of the employees. The court also had to consider the process by which the agreement was made and whether it was made in good faith.

The Fair Work Commission determined that the agreement was made in good faith and covered the appropriate bargaining unit. The Commission found that the agreement complied with the provisions of the Fair Work Act and was in the best interests of the employees. The Commission noted that the agreement provided for a number of benefits for the employees, including increased wages and improved working conditions. The Commission also noted that the agreement had been negotiated through a process that was transparent and involved meaningful consultation with the employees.

The Fair Work Commission approved the Buffalo Partnership Pty Ltd Enterprise Agreement 2014. The decision provides guidance to employers and employees on the requirements for making an enterprise agreement and the considerations that the Commission will take into account when approving an agreement.

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