Food & Desire Pty Ltd t/as Food & Desire

[2014] FWCA 363

[2014] FWCA 363

FAIR WORK COMMISSION

DECISION

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

Food & Desire Pty Ltd t/as Food & Desire
(AG2013/11966)

FOOD & DESIRE ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 JANUARY 2014

Application for approval of the Food & Desire Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Food & Desire Pty Ltd t/as Food & Desire (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Food & Desire Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 142 mostly casual employees who are engaged in the provision of catering services at a number of function centres in Victoria.

[2] The employees were last notified of their representational rights on 31 October 2013, and voting for the Agreement’s approval took place between 30 November and 2 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 85 of the 116 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr L Worcester, Director, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Catering - Victoria - Award 1998 [AP772681] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Worcestersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including longer ordinary hours, the removal of penalty rates and certain allowances. However, these have been loaded into higher flat base rates of pay, which are between 18-22% higher than those under the reference instruments. The Agreement also provides for the provision of a free meal where an employee works more than 5 hours on any one day and enhanced redundancy entitlements. Clause 22 of the Agreement sets out that the rates of pay will not fall below increases to a relevant Award or National Minimum Wage Review Decisions issued by the Commission. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 44 and 45 respectively, and a disputes resolution procedure at clause 38 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 14 January 2014, Ms L Anaf, Solicitorappeared with Mr L Worcester and Ms J Colgan 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 said that the applicant had undertaken extensive comparisons which demonstrated that there was no scenario under which an employee would be worse off under the Agreement and that even after taking into account the removal of all relevant penalty rates and allowances, there was an additional 12% buffer between the loaded rates of pay under the Agreement and the rates of pay under the reference instruments. This had been explained to the employees at two lengthy meetings conducted on site.

[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 Food & Desire Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 21 January 2014 and have a nominal expiry date of 20 January 2018.

DEPUTY PRESIDENT

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