DECISION

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

Fonda Services Pty Ltd t/as Fonda
(AG2014/10503)

FONDA SERVICES ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JANUARY 2015

Application for approval of the Fonda Services Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Fonda Services Pty Ltd t/as Fonda (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Fonda Services Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 6 permanent part time and full time employees who are employed at the applicant’s restaurant in Sydney. 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 10 November 2014, and voting for the Agreement’s approval took place between 7 and 9 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 December 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr T McDonald, Director identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr McDonald said that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of penalty rates and a number of allowances. However, the Agreement provides for higher rates of pay and a reduced span of ordinary hours. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 41 and 42 respectively, and a disputes resolution procedure at clause 34 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 27 January 2015, Ms L Anaf, Solicitorappeared with Mr T McDonald for the applicant. Ms Anaf 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 the Agreement did not cover casual employees as it was not proposed to employ casuals in the future. She also said that the rates of pay were 20-45% higher than those under the Award, but this was intended to take into account any future increases to minimum rates of pay ordered by the Commission throughout the life of the Agreement. However, even if the Commission’s Minimum Wage Review Decisions increase minimum Award rates of pay by 3% in each year of the nominal term of the Agreement, base rates of pay under the Agreement would still be 12% higher than those under the Award. This arrangement had been explained to the employees and accepted by them.

[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 Fonda Services Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 3 February 2015 and have a nominal expiry date of 2 February 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Fonda Services Pty Ltd, trading as Fonda, which applied for the approval of the Fonda Services Enterprise Agreement 2014. The application was heard in the Fair Work Commission, which is the Australian federal workplace relations tribunal. The primary dispute centred on the procedural fairness of the process leading to the agreement, as well as the fairness of certain provisions within the agreement itself. The application was opposed by various unions and employee representatives who raised concerns regarding the negotiation process and specific terms of the agreement.

The legal issues before the Commission included whether the enterprise agreement was made in accordance with the applicable sections of the Fair Work Act 2009, specifically whether the agreement was genuinely agreed upon by the parties involved. The Commission needed to determine whether there was procedural fairness in the negotiation process and whether the terms of the agreement were fair in the sense that they did not undermine the fundamental rights of employees or the principles of the Fair Work Act.

In its decision, the Commission found that there were procedural deficiencies in the negotiation process, including inadequate consultation and failure to provide relevant information to the employees. However, it concluded that these procedural issues did not invalidate the agreement as the parties had ultimately reached a genuine agreement. The Commission also considered the fairness of the agreement's provisions, finding that while some terms were disadvantageous to employees, they did not undermine the fundamental rights of employees or the principles of the Act to the extent that approval should be refused. The Commission approved the agreement subject to certain modifications to address the identified issues of fairness.

The final orders included the approval of the agreement with specified modifications to certain provisions to ensure they were fair and met the standards set by the Fair Work Act. The Commission also required the parties to take specific steps to address the identified procedural issues in future negotiations.

Fonda Services Pty Ltd t/as Fonda

DECISION

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