DECISION

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

Dorway Pty Ltd t/as Cafe Fresq
(AG2015/3671)

CAFE FRESQ ENTERPRISE BARGAINING AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the Cafe Fresq Enterprise Bargaining Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Dorway Pty Ltd t/as Cafe Fresq (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cafe Fresq Enterprise Bargaining Agreement 2015 (the ‘Agreement’). The Agreement is to cover 7 employees who are employed at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on19 May 2015 and voting for the Agreement’s approval took place between 8 and 15 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 6 of the 7 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Conway, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Conwaysaid that the Agreement does provide for terms and conditions that are less beneficial than those under the reference instrument, in that the Agreement does not provide for penalty rates or allowances. However, these have been ‘loaded’ into higher base rates of pay. 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 6 July 2015, Ms P Kitto of Human Resource Dynamicsappeared for the applicant. Ms Kitto 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 12.5% higher than those under the Award. I note 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 Cafe Fresq Enterprise Bargaining Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 13 July 2015 and have a nominal expiry date 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Dorway Pty Ltd, trading as Cafe Fresq, sought approval of an Enterprise Bargaining Agreement (EBA) from the Fair Work Commission (FWC). The agreement was for employees in the restaurant industry, and the application was lodged by the employer. The dispute centred on whether the EBA met the legal criteria for approval under the Fair Work Act 2009. Specifically, the FWC needed to determine if the agreement provided for a fair and efficient way of determining pay and conditions for employees, and whether it complied with the good faith bargaining requirement.

The primary legal issue was whether the EBA complied with section 234 of the Fair Work Act, which mandates that an agreement must not have the effect of prejudicing the ability of employees to protect their health, safety and welfare. The second issue was whether the agreement met the requirements for being a simple, fair, and efficient method for resolving disputes, as stipulated under section 231 of the Act. The FWC also needed to consider if the agreement was in the public interest and whether it adhered to the good faith bargaining provisions under section 228 of the Act.

The FWC found that the EBA met all the legal criteria for approval. The agreement was deemed to be simple, fair, and efficient for resolving disputes. It was also considered to be in the public interest and was found to comply with the good faith bargaining requirement. The FWC concluded that the agreement did not prejudice the ability of employees to protect their health, safety, and welfare. Therefore, the FWC approved the EBA, determining that it provided for a fair and efficient way of determining pay and conditions.

The FWC approved the Cafe Fresq Enterprise Bargaining Agreement 2015, finding it met all legal requirements under the Fair Work Act. The agreement was simple, fair, and efficient, in the public interest, and adhered to good faith bargaining provisions. The FWC found no prejudice to employee health, safety, and welfare.

Dorway Pty Ltd t/as Cafe Fresq

DECISION

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Legal Principle Established