Deedot Pty Ltd as trustee for Darian Brennan Trust t/as Deedot Coffee House

[2014] FWCA 3924

[2014] FWCA 3924

FAIR WORK COMMISSION

DECISION

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

Deedot Pty Ltd as trustee for Darian Brennan Trust t/as Deedot Coffee House
(AG2014/1082)

DEEDOT PTY LTD ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JUNE 2014

Application for approval of the Deedot Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Deedot Pty Ltd as trustee for Darian Brennan Trust t/as Deedot Coffee House (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Deedot Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 21 employees who are employed at the applicant’s coffee shop in Holland Park West, Queensland.

[2] The time limits under s 181(2) of the Act are satisfied. In a secret ballot, all 8 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Brennan, Director identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Brennansaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Modern Award, in that the Agreement does not provide for penalty rates for work performed on Saturdays or Sundays. However, the Agreement provides for higher rates of pay, a free drink every shift, a free meal for every shift that requires a meal break and other staff discounts. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 15 and 20 respectively, and a disputes resolution procedure at clause 21 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 2014, Mr P McCartney, Solicitor,appeared with Mr D Brennan for the applicant. Mr McCartney 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 and provided indicative rosters that demonstrated that employees were narrowly ‘better off’ under the Agreement. In response to my query, Mr McCartney confirmed that it was the intention that increases in rates of pay are to be in accordance with the Commission’s Minimum Wage Review Decision rather than the Australian Fair Pay Commission or the National/State Wage Case. He provided undertakings correcting some erroneous references in the Agreement. 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 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Deedot Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 27 May 2014 and have a nominal expiry date of 26 May 2018.

DEPUTY PRESIDENT

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