Condi Pty Ltd T/A Sassi Cucina e Bar

[2013] FWCA 6211

FAIR WORK COMMISSION

DECISION

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

Condi Pty Ltd T/A Sassi Cucina e Bar
(AG2013/8037)

CONDI PTY LTD T/A SASSI CUCINA E BAR ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 28 AUGUST 2013

Application for approval of the Condi Pty Ltd T/A Sassi Cucina e Bar Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Condi Pty Ltd T/A Sassi Cucina e Bar (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Condi Pty Ltd T/A Sassi Cucina e Bar Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 20 employees who are engaged at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 15 May 2013, and voting for the Agreement’s approval took place between 1 July and 26 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a process in which votes were counted by an employee representative, all 20 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms P Kitto identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Kittosaid that the Agreement provides for higher base rates of pay. It was also said that another benefit was the ability of employees to work voluntary additional hours. Rates of pay are to be adjusted by 2.5% on 1 July 2014 and 2.5% on 1 July 2015. 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 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 16 August 2013, Ms P Kitto and Ms D Sassi,appeared for the applicant. Ms Kitto 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. She explained that rates of pay are approximately 15% higher than those under the Modern Award and that the rates of pay under the Agreement are to be backpaid to 1 July 2013.

[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 Condi Pty Ltd T/A Sassi Cucina e Bar Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 23 August 2013 and have a nominal expiry date of 30 July 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Condi Pty Ltd T/A Sassi Cucina e Bar, the applicant sought approval of the Enterprise Bargaining Agreement 2013 from the Fair Work Commission. The dispute arose over the terms and conditions of employment for the workers within Condi Pty Ltd's business. The Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009 and was in the best interests of the employees.

The central legal issues before the Commission involved the validity of specific provisions in the Enterprise Bargaining Agreement 2013. These included the classification of employees, the rates of pay, the provisions for penalty rates, and the extent to which the agreement complied with the procedural fairness and good faith bargaining requirements. Additionally, the Commission considered whether the agreement adequately protected the employees' rights and interests.

The Fair Work Commission meticulously reviewed the application and the supporting evidence. It found that the agreement largely complied with the statutory requirements and was in the best interests of the employees. The Commission noted that the parties had engaged in genuine bargaining, and the terms were fair and reasonable. After careful consideration, the Commission approved the Enterprise Bargaining Agreement 2013, confirming its validity and binding effect under the Fair Work Act 2009.

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