Cashin & Handley Enterprises Pty Ltd t/as Guzman y Gomez Fountain Gate

[2015] FWCA 5783

[2015] FWCA 5783

FAIR WORK COMMISSION

DECISION

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

Cashin & Handley Enterprises Pty Ltd t/as Guzman y Gomez Fountain Gate
(AG2015/4245)

CASHIN & HANDLEY ENTERPRISES PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 AUGUST 2015

Application for approval of the Cashin & Handley Enterprises Pty Ltd - Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cashin & Handley Enterprises Pty Ltd t/as Guzman y Gomez Fountain Gate (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cashin & Handley Enterprises Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 31 employees who are employed at the applicant’s franchise restaurant, commonly known as Guzman y Gomez, in Narre Warren, Victoria.

[2] The employees were last notified of their representational rights on 15 June 2015, and voting for the Agreement’s approval took place on 14 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 22 of the 24 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 August 2015. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 5 August 2015.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Baker, 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 Bakersaid that the Agreement does provide for terms and conditions that are less beneficial than those under the reference instruments, in that the Agreement does not provide for penalty rates for work performed on weekends, public holidays and during unsociable hours. However, these have been ‘loaded’ into higher base rates of pay. 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 7.3 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 18 August 2015, Mr C Agnew, Solicitorappeared with Mr S Baker 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 rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions and that the increase of 2.5% due from 1 July 2015 had already been passed on to employees.

[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 Cashin & Handley Enterprises Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 25 August 2015 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

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