CLM (Wattle Grove) Pty Ltd t/as Guzman y Gomez Macarthur Square

[2014] FWCA 5950

[2014] FWCA 5950

FAIR WORK COMMISSION

DECISION

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

CLM (Wattle Grove) Pty Ltd t/as Guzman y Gomez Macarthur Square
(AG2014/7155)

CLM (WATTLE GROVE) PTY LTD - ENTERPRISE AGREEMENT 2014 -2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 1 SEPTEMBER 2014

Application for approval of the CLM (Wattle Grove) Pty Ltd - Enterprise Agreement 2014 -2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by CLM (Wattle Grove) Pty Ltd t/as Guzman y Gomez Macarthur Square (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the CLM (Wattle Grove) Pty Ltd - Enterprise Agreement 2014 -2018 (the ‘Agreement’). The Agreement is to cover 23 employees, other than Restaurant Managers, who are employed at the applicant’s franchise 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 May 2014, and voting for the Agreement’s approval took place on 17 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 15 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 August 2014. While this is outside the statutory time period contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the period for filing to 18 August 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Tesoriero, 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 Tesorierosaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on weekends, a less generous penalty rate on public holidays and the removal of a number of allowances. However these rates have been loaded into higher base rates of pay for full and part time employees that are between 8% and 10% higher than those under the reference instruments. I note that the applicant employs no casual employees. 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 26 August 2014, Mr C Agnew, Solicitor,appeared with Mr C Tesoriero 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. He also explained that the Agreement is similar in terms to a number of enterprise agreements recently approved by the Commission. Mr Tesoriero stated that the franchise restaurant had been open since mid-June 2014. Mr Agnew also offered an undertaking so that rates of pay are to be increased by 25c per hour on 1 July 2014, 1 July 2015, 1 July 2016 and 1 July 2017, or in accordance with the Commission’s Federal Minimum Wage Review Decision, whichever is the greater. 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, 189, 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 CLM (Wattle Grove) Pty Ltd - Enterprise Agreement 2014 -2018.Pursuant to s 54 of the Act, the Agreement shall operate from 2 September 2014 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

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