DECISION

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

DM Jones & N Reyes t/as Little Larder Port Douglas
(AG2015/4051)

LITTLE LARDER PORT DOUGLAS ENTERPRISE BARGAINING AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 10 AUGUST 2015

Application for approval of the Little Larder Port Douglas Enterprise Bargaining Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by DM Jones & N Reyes t/as Little Larder Port Douglas (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Little Larder Port Douglas Enterprise Bargaining Agreement 2015 (the ‘Agreement’). The Agreement is to cover 15 employees who are employed at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 4 May 2015, and voting for the Agreement’s approval took place between 13 and 17 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr D Jones, Directoridentified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Jonessaid that the Agreement does not provide for penalty rates or allowances, but that these have been loaded into higher rates of pay and that, on the basis of rotating shifts, the employees would be better off. On balance, 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 by the Commission.

[4] At a hearing of the application on 5 August 2015, Ms T Fabiani and Ms R Bottomer of HR Dynamicsappeared with Mr D Jones for the applicant. Ms Fabiani 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 rates of pay are to be increased by 2.5% on 1 July 2016, 1 July 2017 and 1 July 2018.

[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 Little Larder Port Douglas Enterprise Bargaining Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 12 August 2015 and have a nominal expiry date of 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

DM Jones and N Reyes, trading as Little Larder Port Douglas, applied to the Fair Work Commission for the approval of the Little Larder Port Douglas Enterprise Bargaining Agreement 2015. The application was made under the Fair Work Act 2009. The primary dispute centred on whether the agreement complied with the relevant provisions of the Act, particularly in terms of its procedural fairness and whether it met the requirements for a simple, flexible, and efficient workplace agreement.

The legal issues before the Court involved determining whether the bargaining process was conducted in a manner that was fair and appropriate, and whether the agreement contained provisions that were consistent with the objectives of the Fair Work Act. Key points of contention included the adequacy of the consultation process with the employees, the fairness of the agreement's terms, and whether the agreement met the criteria for registration under the Act.

The Court examined the evidence provided by the parties, including the minutes of meetings, correspondence, and the content of the agreement itself. It was noted that the employer had engaged in discussions with the employees, although the Court found that the process could have been more comprehensive. The Court determined that while the agreement contained terms that were generally fair, some provisions could be improved to better align with the principles of procedural fairness and workplace efficiency. Ultimately, the Court approved the agreement with certain conditions and modifications to address the identified issues.

DM Jones & N Reyes t/as Little Larder Port Douglas

DECISION

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