H&L Johnston Pty Ltd t/as Seabean Tapas Bar Restaurant

[2014] FWCA 8468

[2014] FWCA 8468

FAIR WORK COMMISSION

DECISION

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

H&L Johnston Pty Ltd t/as Seabean Tapas Bar Restaurant
(AG2014/9887)

SEABEAN ABN 50 508 691 320 ENTERPRISE BARGAINING AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 DECEMBER 2014

Application for approval of the Seabean ABN 50 508 691 320 Enterprise Bargaining Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by H&L Johnston Pty Ltd t/as Seabean Tapas Bar Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Seabean ABN 50 508 691 320 Enterprise Bargaining Agreement 2014 (the ‘Agreement’). The Agreement is to cover 6 employees who are employed at the applicant’s restaurant in Mossman, North Queensland.

[2] The employees were last notified of their representational rights on 30 August 2014 and voting for the Agreement’s approval took place between 17 and 28 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 November 2014. While I note that this is outside the statutory time limit contemplated by s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for lodgement to 14 November 2014.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr L Johnston, Restaurant Owner identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Johnsonsaid that the Agreement does not provide penalty rates for work performed on weekends and public holidays. However these rates have been loaded into a higher rate of pay. Rates of pay are to be increased by 2.5% on 1 October 2015, 1 October 2016 and 1 October 2017. 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 clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 21 November 2014, Ms P Kitto of HR Dynamics,appeared with Mr L Johnston 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. She explained that the ‘loaded’ rates of pay under the Agreement were approximately 12% higher than those under the Modern Award and the Agreement met the BOOT.

[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 Sebean ABN 50 508 691 320 Enterprise Bargaining Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 28 November 2014 and have a nominal expiry date of 30 October 2018.

DEPUTY PRESIDENT

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