Day Dream Trading Company Pty Ltd

[2014] FWCA 6398

[2014] FWCA 6398

The attached document replaces the document previously issued with the above code on 12 September 2014.

The references to ‘A & G Fomo Pty Ltd atf A & G Family Trust’ and ‘Silverfrost Pty Ltd atf the de Vries Argente Trust’ in para [1] have been amended to correct typographical errors.

Sean Howe

Associate to Deputy President Sams

Dated 15 September 2014

[2014] FWCA 6398

FAIR WORK COMMISSION

DECISION

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

Day Dream Trading Company Pty Ltd
(AG2014/8812)

DASS ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 SEPTEMBER 2014

Application for approval of the DASS Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Day Dream Trading Company Pty Ltd, A & G Fomo Pty Ltd atf The Trustee for A & G Family Trust, Schnitzel Enterprise Pty Ltd, SilverFrost Pty Ltd atf the de Vries Argente Trust and Waurney Enterprise Pty Ltd (collectively, the ‘applicants’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the DASS Enterprise Agreement 2014 (the ‘Agreement’). The applicants are the subject of a single interest employer authorisation made by Gregory C on 4 June 2014; See: Day Dream Trading Company Pty Ltd and Others [2014] FWC 3728. The Agreement is to cover 78 employees who are engaged at the applicant’s franchise restaurants, commonly known as Schnitz. 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 4 July 2014, and voting for the Agreement’s approval took place between 23 and 25 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 17 of the 18 employees who cast a vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17)Mr M Catania, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998 [AP787213] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Cataniasaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including lower junior rates of pay for 19 and 20 year olds, the removal of higher duties entitlements and the omission of some allowances. However the Agreement provides for higher base rates of pay, into which annual leave loading is amortized. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 30 and 32 respectively, and a disputes resolution procedure at clause 31 provides for mediation and consent arbitration by the Commission.

[4] At a hearing of the application on 12 September 2014, Mr C Ni, Solicitorappeared with Mr M Catania, Ms A Nguyen, Mr D Sholl and Mr D de Vries for the applicant. Mr Ni 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. Mr Ni explained that the Agreement set out three wage schedules in the Agreement, each providing for different penalty loading arrangements, to be selected at the discretion of the employer. Schedule A provides for a high flat rate across all hours worked, Schedule B provides for a flat rate slightly lower than that of Schedule A across Monday to Saturday, with time and a half for work performed on Sundays and Schedule C provides penalty rates that mirror those of the modern award. Mr Ni said that calculations had been made based on rostering models provided by the employers and submitted that in all cases, employees would be better off overall. Rates of pay are to be increased by 2.5% on 1 July 2015, 1 July 2016 and 1 July 2017.

[5] Having heard the applicants’ 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 DASS Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 19 September 2014 and have a nominal expiry date of 18 September 2018.

DEPUTY PRESIDENT

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