Bushpig Pty Ltd t/as Hogs Breath Cafe Campbelltown

[2014] FWCA 1879

[2014] FWCA 1879

FAIR WORK COMMISSION

DECISION

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

Bushpig Pty Ltd t/as Hogs Breath Cafe Campbelltown
(AG2014/455)

BUSHPIG PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2014

Application for approval of the Bushpig Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bushpigs Pty Ltd t/as Hogs Breath Cafe Campbelltown (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bushpig Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 17 employees, other than Restaurant Managers, who are engaged at the applicant’s restaurant in Campbelltown, New South Wales. 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 16 November 2013, and voting for the Agreement’s approval took place on 14 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 March 2014. Whilst I note that this is outside the statutory time limit contemplated by s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for lodgement to 4 March 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Donaldson, Director identified the Restaurant Industry Award 2010 [MA000119] and the Restaurants, &c., Employees (State) Award [AN120468] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Donaldsonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a number of allowances and penalty rates for work performed on weekends, public holidays and at unsociable hours. However, these have been ‘loaded’ into a higher flat base rate of pay. Rates of pay are to be increased by 25c per hour on 1 July 2014. 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 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 March 2014, Mr C Agnew, Solicitor,appeared with Mr M Donaldson 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. Mr Agnew explained that the applicant had recently taken over the business from another owner who had gone into liquidation. The Agreement has a short nominal term as the applicant intended to revisit and review the arrangements after 1 June next year.

[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 Bushpig Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 21 March 2014 and have a nominal expiry date of 1 June 2015.

DEPUTY PRESIDENT

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