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

Printed by authority of the Commonwealth Government Printer

Cashin & Handley Enterprises Pty Ltd, trading as Guzman y Gomez Fountain Gate, applied to the Fair Work Commission for approval of their Enterprise Agreement 2015. This application followed the negotiation of the agreement between the employer and the employees' union, United Voice. The nature of the dispute pertained to the procedural fairness and compliance of the agreement with the Fair Work Act 2009. The Fair Work Commission was the court responsible for adjudicating on this matter.

The legal issues before the Commission centred on whether the negotiation process was conducted fairly and whether the agreement met the statutory requirements under the Fair Work Act. Specifically, the Commission had to determine if there was genuine bargaining, if the agreement contained the prescribed minimum terms and conditions, and if the employees had been adequately informed and consulted about the agreement's contents. Additionally, the Commission assessed whether the agreement adhered to the procedural fairness principles, including ensuring that employees had a reasonable opportunity to express their views.

The Commission found that the negotiation process was fair and that the agreement complied with the statutory requirements. The employer demonstrated that genuine bargaining had taken place, and the agreement contained all the prescribed minimum terms and conditions. Furthermore, the employees were sufficiently informed and consulted about the agreement's contents. The Commission also concluded that the procedural fairness principles were observed, as employees had a reasonable opportunity to express their views during the negotiation process. Consequently, the Commission approved the Enterprise Agreement 2015.

The Fair Work Commission's final orders included the approval of the Cashin & Handley Enterprises Pty Ltd - Enterprise Agreement 2015, subject to the terms and conditions outlined in the agreement. The Commission's decision provided clarity and certainty for both the employer and employees, ensuring that the agreement would govern their employment relationship in accordance with the Fair Work Act.

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

DECISION

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