Cuban Style Pty Ltd t/as Coco Cubano

[2015] FWCA 7045

[2015] FWCA 7045

FAIR WORK COMMISSION

DECISION

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

Cuban Style Pty Ltd t/as Coco Cubano
(AG2015/5735)

CUBAN STYLE PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 OCTOBER 2015

Application for approval of the Cuban Style Pty Ltd - Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cuban Style Pty Ltd t/as Coco Cubano (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cuban Style Pty Ltd – Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 49 employees who are employed at the applicant’s restaurants in Macarthur and Wollongong, New South Wales.

[2] The employees were last notified of their representational rights on 20 July 2015 and voting for the Agreement’s approval took place on 11 and 12 August 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the approval of the Agreement, all 16 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 October 2015. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for lodgement to 1 October 2015 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Keighley, General Manager, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Keighleysaid that while the Agreement does not provide for penalty rates for work performed on weekends and public holidays, these have been ‘loaded’ into higher base rates of pay. 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 12 October 2015, Ms D Marsden-Ballard appeared with Mr J Keighley and Ms J Rana for the applicant. Ms Marsden-Ballard 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 calculations based on indicative rosters and ‘loaded’ base rates of pay demonstrated a financial benefit for employees of between 3% and 11%. She also said that rates of pay are to be increased by 2% or in accordance with the Commission’s annual minimum wage review decision, whichever is the higher on 1 July in each year of the Agreement’s nominal term. On balance, I am satisfied that the Agreement passes the BOOT.

[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 Cuban Style Pty Ltd – Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 19 October 2015 and have a nominal expiry date of 18 October 2019.

DEPUTY PRESIDENT

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