Grahame Wearne and Jeanette Wearne, Equipwrite Pty Ltd atf Wearne Family Trust t/as Nautilus Restaurant

[2013] FWCA 8593

[2013] FWCA 8593

FAIR WORK COMMISSION

DECISION

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

Grahame Wearne and Jeanette Wearne, Equipwrite Pty Ltd atf Wearne Family Trust t/as Nautilus Restaurant
(AG2013/11004)

NAUTILUS RESTAURANT ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 OCTOBER 2013

Application for approval of the Nautilus Restaurant Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Grahame Wearne and Jeanette Wearne, Equipwrite Pty Ltd atf Wearne Family Trust t/as Nautilus Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Nautilus Restaurant Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 25 employees who are engaged at the applicant’s restaurant in Port Douglas, North Queensland. I note that the Agreement does not cover the restaurant’s Executive Chef or Restaurant Manager. 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 August 2013, and voting for the Agreement’s approval took place between 18 and 25 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by means of a voting sheet, 21 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Wearne identified the Restaurant Industry Award 2010 [MA000119] and the Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Wearnesaid 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 weekends and public holidays and a number of allowances. However, the otherwise applicable penalty rates and allowances have been loaded into a higher flat rate of pay. Staff who work on a public holiday may also accrue time off in lieu. Rates of pay are to be increased by 2.5% on 1 July 2014 and 1 July 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 30 October 2013, Ms P Kitto of HR Dynamicsappeared with Mr A Michielli for the applicant. Ms Kitto 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. Ms Kitto noted that this Agreement was in similar terms to other agreements in the restaurant industry in Port Douglas which have recently been approved by the Commission. All of these Agreements reflect the seasonal nature of the hospitality sector in North Queensland.

[5] Having heard the parties’ 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 Nautilus Restaurant Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 6 November 2013 and have a nominal expiry date of 30 September 2016.

DEPUTY PRESIDENT

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