Christian Chance Pty Ltd

[2015] FWCA 5653

[2015] FWCA 5653

FAIR WORK COMMISSION

DECISION

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

Christian Chance Pty Ltd
(AG2015/3496)

CHRISTIAN CHANCE PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 20 AUGUST 2015

Application for approval of the Christian Chance Pty Ltd - Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Christian Chance 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 Christian Chance Pty Ltd – Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 15 employees who are employed at the applicant’s franchise cafe, commonly known as Dome Coffee, in Cannington, Western Australia.

[2] The employees were last notified of their representational rights on 21 March 2015, and voting for the Agreement’s approval took place on 10 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 August 2015. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I note that the employees are already being paid in accordance with the Agreement. I consider it fair in all the circumstances to extend the date for lodgement to 3 August 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms L Chan, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Chansaid that the Agreement does provide for some 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 removes a number of allowances. 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 7.4 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 13 August 2015, Mr C Agnew, Solicitorappeared with Mr C Chan and Ms L Chan 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 cafe was located in a shopping centre and operated predominantly in daylight hours, with the exception of Thursday night. He said that the applicant had performed calculations based on indicative rosters which indicated that the employees were better off overall, even in the absence of penalty rates for work performed on Saturdays, Sundays and public holidays. He provided a comparative document setting out these calculations. Mr Agnew also offered to provide an undertaking to the effect that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions and that the applicant would pass on to employees the increase of 2.5% from 1 July 2015. 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 Christian Chance Pty Ltd – Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 20 August 2015 and have a nominal expiry date of 1 September 2017.

DEPUTY PRESIDENT

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