Epping Hogs Pty Ltd t/as Hogs Breath Cafe Epping Summary

[2014] FWCA 1876

FAIR WORK COMMISSION

DECISION

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

Epping Hogs Pty Ltd t/as Hogs Breath Cafe Epping
(AG2014/476)

EPPING HOGS PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2014

Application for approval of the Epping Hogs Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Epping Hogs Pty Ltd t/as Hogs Breath Cafe Epping (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Epping Hogs Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 55 employees, other than Restaurant Managers, who are engaged at the applicant’s restaurant in Epping, Victoria. 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 1 November 2014, and voting for the Agreement’s approval took place on 22 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 35 of the 39 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Currie, 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 Curriesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and public holidays and the removal of a number of allowances. However, these benefits have been loaded into higher base rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 and arbitration by the Commission.

[4] At a hearing of the application on 14 March 2014, Mr C Agnew, Solicitor,appeared with Mr A Currie 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 the restaurant was in a shopping centre complex and its opening hours were restricted by the opening hours of the shopping centre. Mr Currie explained that the restaurant was in its first six months of operation and that the applicant currently employed a larger number of staff to allow for an assessment of staff numbers required due to trading patterns and the needs of staff.

[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 Epping Hogs Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 21 March 2014 and have a nominal expiry date of 1 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involves Epping Hogs Pty Ltd, trading as Hogs Breath Cafe Epping, and its employees. The dispute pertains to the application for approval of the Epping Hogs Pty Ltd Enterprise Agreement 2013-2017. The application was heard by the Fair Work Commission (FWC), which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues before the FWC included whether the agreement met the requirements for approval under the Act, specifically whether it complied with the "better off overall test" and did not unfairly discriminate against any employees. The FWC also needed to consider whether the agreement had been made in good faith and whether it provided for a proper system for resolving workplace disputes.

In delivering its decision, the FWC examined the provisions of the agreement, the submissions from both the employer and the employees, and the evidence presented. The FWC found that the agreement did meet the "better off overall test" and did not unfairly discriminate against any employees. It also determined that the agreement had been made in good faith and provided for a proper system for resolving workplace disputes. Therefore, the FWC approved the enterprise agreement.

The FWC's final orders were that the Epping Hogs Pty Ltd Enterprise Agreement 2013-2017 be approved, effective from the date of the decision. The agreement would apply to all employees of Epping Hogs Pty Ltd who were not excluded from its coverage.

Epping Hogs Pty Ltd t/as Hogs Breath Cafe Epping

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