Criniti's Group

[2016] FWCA 8250

[2016] FWCA 8250

FAIR WORK COMMISSION

DECISION

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

Criniti's Group
(AG2016/6610)

CRINITI'S MULTI-ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 17 NOVEMBER 2016

Application for approval of the Criniti's Multi-Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Criniti’s Group which comprises Mamma Natuzza Pty Ltd, S Lucia Pty Ltd, S Padre Pio Pty Ltd, Madonna Di Lourdes Pty Ltd, San Cosimo Pty Ltd, S Domenico Pty Ltd, S Giovanni Pty Ltd, S Francesco Pty Ltd, Crinz Media Pty Ltd, and Cosimo Foods (collectively referred to as the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a multi enterprise agreement to be known as the Criniti’s Multi-Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 333 employees who are employed at the applicant’s eight restaurants, six of which are located in Sydney and two in Melbourne, excluding salaried employees, senior managers, assistant managers, executive chefs and full-time supervisors. 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 1 July 2016, and voting for the Agreement’s approval took place between 18-21 October 2016. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic vote, 104 of the 107 employees that voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 October 2016 thereby satisfying the time limit under 185(3)(a) of the Act.

[3] At this point I note that this is the third application lodged by the applicant in respect to the same Agreement. A second vote of employees was undertaken as a consequence of the Commission raising concerns that the first vote may not have demonstrated that the Agreement had been ‘genuinely agreed to’ (s 186). The first application (AG2016/4910) was discontinued on 20 September 2016. A second application was lodged on 21 September 2016, and further issues were raised by the Commission about the approval process. As a result of filing this fresh application, the second application (AG2016/5893) is to be discontinued.

[4] In the Employer’s Declaration in support of this application (Form F17) Ms J Anderson, Human Resources Manager, 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’). Ms Anderson said that the Agreement does provide for some terms that are less beneficial than those under the Award, in that it does not provide for penalty rates on weekends. However, these have been ‘loaded’ into the hourly rate of pay in compensation of the Award’s weekend penalties. It is self-evident that if an employee work solely on the weekend, they will be worse off, as the ‘loaded rate’ is lower than the penalty rate they would otherwise receive on weekends under the reference instruments. During a hearing for the matter on 11 November, 2016 the applicant offered to provide an undertaking that any employee who falls into this category (of which the applicant identified only one employee out of 333 in their Form F17), will be paid an additional 10% on Saturdays and 30% on Sundays to ensure they are better off overall than under the reference instruments. The undertaking was provided to my chambers on 11 November, 2016. 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’. Given this undertaking, 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.

[5] At a hearing of the application on 11 November 2016, Mr I Latham, of Counselappeared for the applicant. Mr Latham 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.

[6] 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 multi enterprise agreement known as the Criniti’s Multi-Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 18 November 2016 and have a nominal expiry date of 30 September 2020.

DEPUTY PRESIDENT

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