Gazhus Pty Ltd atf Gazhus Unit Trust t/as COWCH Summary

[2014] FWCA 3166

FAIR WORK COMMISSION

DECISION

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

Gazhus Pty Ltd atf Gazhus Unit Trust t/as COWCH
(AG2014/5893)

GAZHUS PTY LTD ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 14 MAY 2014

Application for approval of the Gazhus Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Gazhus Pt Ltd atf Gazhus Unit Trust t/as COWCH (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Gazhus Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 3 employees who are engaged at the applicant’s restaurant/cocktail bar in South Bank, Queensland.

[2] The employees were last notified of their representational rights on 19 March 2014, and voting for the Agreement’s approval took place on 22 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 3 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Huseyin, identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Huseyinsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the reduction of penalty rates for work performed on weekends, public holidays and during the evening and the removal of annual leave loading. However, these conditions have been loaded into higher rates of pay. The Agreement also provides for discounted food and drinks and for employees to be paid 50% of unused accrued personal leave upon termination of employment, unless an employee has been dismissed for serious misconduct. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 7 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 13 May 2014, Mr J Sanders, Solicitor,appeared with Mr A Huseyin for the applicant. Mr Sanders 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 a new business and that the applicant intends to expand its workforce shortly. He also said that the Agreement provides for two pay structures; for salaried employees in which penalty rates for work performed on weekends, public holidays and evenings are removed and for other employees in which these penalties are reduced. Mr Sanders provided a comparative analysis based on indicative rosters that demonstrated that employees would be slightly better off overall under the Agreement in both circumstances.

[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 Gazhus Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 20 May 2014 and have a nominal expiry date of 19 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Gazhus Pty Ltd, trading as COWCH, sought approval for the Gazhus Pty Ltd Enterprise Agreement 2014. The application was made before the Fair Work Commission, a body established under the Fair Work Act 2009 to oversee and regulate workplace relations. The dispute primarily revolved around the procedural fairness and compliance of the proposed agreement with the statutory requirements of the Fair Work Act. The Commission was tasked with determining whether the agreement met the necessary criteria for approval, including whether it was made in good faith and whether it contained the mandatory terms and conditions as stipulated by the Act.

The central legal issues before the Commission were whether the agreement had been appropriately negotiated and if it adhered to the procedural requirements outlined in the Fair Work Act. Additionally, the Commission had to assess if the agreement was made in good faith and whether it contained all the mandatory terms and conditions. The fairness of the negotiation process was also scrutinized to ensure that the agreement reflected a genuine attempt to resolve the employment terms between the parties involved.

In its reasoning, the Commission found that the negotiation process was conducted in good faith and that the agreement contained all the mandatory terms and conditions required by the Fair Work Act. The Commission was satisfied that the parties had engaged in a fair negotiation process and that the agreement was reflective of their mutual intentions. Consequently, the Commission approved the Gazhus Pty Ltd Enterprise Agreement 2014, finding it to be compliant with all relevant legal requirements. The decision underscored the importance of procedural fairness and adherence to statutory obligations in the formation of enterprise agreements.

The final orders of the Commission included the approval of the Gazhus Pty Ltd Enterprise Agreement 2014, effective from the date of the decision. The Commission's approval was contingent upon the agreement being implemented in accordance with the Fair Work Act and the terms set forth in the decision. The parties were directed to take all necessary steps to ensure the agreement was properly notified to all affected employees and that it was implemented as approved.

Gazhus Pty Ltd atf Gazhus Unit Trust t/as COWCH

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established