Good Fortune Coffees Pty Ltd

[2013] FWCA 4962

[2013] FWCA 4962

FAIR WORK COMMISSION

DECISION

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

Good Fortune Coffees Pty Ltd
(AG2013/1661)

GOOD FORTUNE COFFEES PTY LTD - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 JULY 2013

Application for approval of the Good Fortune Coffees Pty Ltd - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Good Fortune Coffees Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Good Fortune Coffees Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 21 employees who are engaged at the applicant’s Cafe, commonly known as Dome Cafe, in Applecross, Western Australia.

[2] The employees were last notified of their representational rights on 25 February 2013, and voting for the Agreement’s approval took place on 25 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 16 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Vadivale, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Vadivalesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision of a day’s job search entitlement, the non-inclusion of an entitlement to transfer to lower paid duties in redundancy situations, the removal of a number of non applicable allowances and the lack of provision for a minimum break between shifts. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Award, including higher ‘loaded’ rates of pay, a minimum engagement of four hours for part time employees and jury service leave. 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.

[4] At a hearing of the application on 15 July 2013, Mr C Agnew, Solicitor,appeared 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 Agreement was similar to a number of enterprise agreements recently approved by the Commission. While a number of those agreements related to licensed premises, this one did not. Mr Agnew also offered undertakings so that the hourly rates of pay under the Agreement would be increased in accordance with the Commission’s Annual Minimum Wage Review Decision and to allow for the Commission to conciliate and arbitrate disputes under the disputes resolution procedure in clause 2.4. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Good Fortune Coffees Pty Ltd - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 15 July 2013 and have a nominal expiry date of 1 December 2015.

DEPUTY PRESIDENT

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