Gresham Bar Pty Ltd T/A The Gresham Bar

[2016] FWCA 6336

[2016] FWCA 6336

FAIR WORK COMMISSION

DECISION

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

Gresham Bar Pty Ltd T/A The Gresham Bar
(AG2016/4128)

GRESHAM BAR PTY LTD - ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 SEPTEMBER 2016

Approval of the Gresham Bar Pty Ltd - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Gresham Bar 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 Gresham Bar Pty Ltd – Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with a Union or any Employee Bargaining Representatives. It is to cover all employees of the applicant (currently 10) who are employed within the classifications set out in the Agreement. This does not include managerial staff. 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 26 May 2016, and voting for the Agreement’s approval took place on 12 July 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all eight employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 August 2016. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for filing to 3 August 2016 (s 185(3)(b)).

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Ms K Fehlberg, Operations Manager of the applicant, identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). At the hearing, however, Mr Agnew and Ms Fehlberg explained that there is only one establishment operated by the applicant, a high-end cocktail bar in Brisbane’s central business district that provides very limited food service, and there are no current plans to expand the business. The business was primarily characterised as a bar, and the Hospitality Industry (General) Award 2010, was therefore the sole relevant reference instrument.

[4] At a hearing of the application on 5 September 2016, Mr C Agnew appeared with permission on behalf of the applicant, together with Ms K Fehlberg of the applicant. Mr Agnew submitted that, subject to the extension of the statutory time limit for filing as indicated at [2] above, all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission.

[5] The base wage rates in cl 3.2.1 of the Agreement are approximately 5% higher than those in the reference instrument, before application of the 2.4% increase ordered by the Commission as a result of the 2015-16 Annual Wage Review. At the hearing, Mr Agnew indicated that the applicant intended to apply that 2.4% increase to the wages under the Agreement from the date the Agreement was approved, to preserve that above-award margin. Mr Agnew and Ms Fehlberg stated that the bar is not open late at night or on weekends, so employees would rarely, if ever, work hours that would attract penalty rates if the reference instrument were to apply. They further stated that the bar is a small operation with set hours and so overtime would similarly rarely, if ever, be worked. In light of this information, I am satisfied that the Agreement passes the BOOT.

[6] The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a dispute resolution procedure at clause 2.4 provides for conciliation and consent arbitration by the Commission.

[7] Having heard the applicant’s submissions and upon reviewing the terms of the pre-approval 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 they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the Gresham Bar Pty Ltd – Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 12 September 2016. It shall have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

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