Crema CB Pty Ltd

[2013] FWCA 8804

[2013] FWCA 8804

FAIR WORK COMMISSION

DECISION

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

Crema CB Pty Ltd
(AG2013/9908)

CREMA CB PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 NOVEMBER 2013

Application for approval of the Crema CB Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Crema CB 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 Crema CB Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 25 employees who are engaged at the applicant’s franchise restaurant, commonly known as Dome Coffee, in Currambine, Western Australia. The Agreement is in similar terms to a number of others approved by the Commission recently.

[2] The employees were last notified of their representational rights on 27 September 2013, and voting for the Agreement’s approval took place on 24 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret attendance ballot, 17 of the 18 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Vigh, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Vighsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision of a day’s job search entitlement in cases of termination other than redundancy, the non-inclusion of an entitlement to transfer to lower paid duties in redundancy situations, the removal of a number of non-applicable allowances and the lack of provision for a minimum break between shifts. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher ‘loaded’ rates of pay, a minimum engagement of four hours for part time employees and a provision for an employee who performs work that carries a higher rate of pay to be paid at that higher rate of pay for all hours worked. 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 by the Commission.

[4] At a hearing of the application on 7 November 2013, Mr C Agnew, Solicitor, appeared with Mr G Vigh 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 provided an undertaking that base rates of pay are to be adjusted with reference to the Commission’s Annual Minimum Wage Review Decision. 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 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Crema CB Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 14 November 2013 and have a nominal expiry date of 1 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE405263  PR544327>