Cafe Shenkin Pty Ltd

[2015] FWCA 6786

[2015] FWCA 6786

FAIR WORK COMMISSION

DECISION

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

Cafe Shenkin Pty Ltd
(AG2015/5561)

THE CAFE SHENKIN ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 2 OCTOBER 2015

Application for approval of The Cafe Shenkin Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cafe Shenkin Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Cafe Shenkin Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 26 employees who are engaged at the applicant’s three restaurants and one espresso bar in Sydney, New South Wales. It does not cover administrative staff. 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 June 2015, and voting for the Agreement’s approval took place on 4 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by email, 23 of the 26 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Haikin, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Haikinsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the lack of a maximum spread of hours for split shifts, and the removal of penalty rates for work performed on weekends and public holidays. However, the Agreement provides for higher rates of pay, more generous meal entitlements and an extra day of Birthday Leave for employees with more than twelve months’ service. It was also said that another benefit included the ability to cash in annual leave entitlements in certain circumstances. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 7 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 29 September 2015, Mr C Ni, Solicitorappeared with Mr D Haikin for the applicant. Mr Ni 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 Ni also provided an undertaking to the effect that rates of pay under the Agreement are to be increased by 2% on 1 July 2016, 1 July 2017, 1 July 2018 and 1 July 2019. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190, 191 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Cafe Shenkin Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 6 October 2015 and have a nominal expiry date of 5 October 2019.

DEPUTY PRESIDENT

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