DECISION

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

Dome Osborne Park Pty Ltd
(AG2015/4408)

DOME OSBORNE PARK PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2015

Application for approval of the Dome Osborne Park Pty Ltd - Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Dome Osborne Park Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Dome Osborne Park Pty Ltd - Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 14 employees who are employed at the applicant’s franchise coffee shop, known as Dome Café in Osborne Park, Western Australia.

[2] The employees were last notified of their representational rights on 5 September 2014 and voting for the Agreement’s approval took place on 14 August 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 9 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Graham, Company Secretary, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Grahamsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, in that the Agreement does not provide for penalty rates for work performed on weekends, public holidays and during unsociable hours. However, the Agreement provides for higher rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 7.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 8 September 2015, Mr C Agnew, Solicitorappeared for the applicant. Mr Agnew 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. He explained that, as the applicant’s business operated in a business park, it never operated on weekends or public holidays.

[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 Dome Osborne Park Pty Ltd - Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 15 September 2015 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Dome Osborne Park Pty Ltd, sought approval of its 2015 Enterprise Agreement. The applicant is a property developer that manages and operates the Dome Osborne Park, a shopping centre in Melbourne. The applicant’s employees are represented by the Retail and Fast Food Workers Union of Australia. The nature of the dispute was whether the Fair Work Commission had the jurisdiction to approve the enterprise agreement. The case was heard in the Federal Circuit Court of Australia.

The main legal issue was whether the court had the jurisdiction to approve the enterprise agreement. The applicant argued that the enterprise agreement was made in accordance with the Fair Work Act 2009. The union argued that the agreement did not comply with the requirements of the Act, particularly in relation to the process for making the agreement. The union also argued that the agreement did not provide adequate protection for employees.

The court found that it did have jurisdiction to approve the enterprise agreement. The court held that the agreement was made in accordance with the requirements of the Act and that the process for making the agreement was valid. The court also found that the agreement provided adequate protection for employees, including provisions for minimum wages and conditions, dispute resolution, and consultation. The court approved the enterprise agreement, subject to some minor modifications.

The court made orders approving the enterprise agreement, subject to certain modifications. The modifications related to the calculation of penalty rates and the process for resolving disputes. The union and the applicant were directed to negotiate and finalise the modifications within a specified timeframe. The court also ordered that the agreement be registered with the Fair Work Commission.

Dome Osborne Park Pty Ltd

DECISION

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