Harrisons and Bucci Restaurant

[2013] FWCA 8569

FAIR WORK COMMISSION

DECISION

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

Harrisons and Bucci Restaurant
(AG2013/11000)

THE TRUSTEE FOR THE LW FAMILY TRUST & THE TRUSTEE FOR THE MARY PATRICK FAMILY TRUST T/AS PORT RESTAURANT VENTURES ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 OCTOBER 2013

Application for approval of The Trustee for The LW Family Trust & The Trustee for The Mary Patrick Family Trust T/As Port Restaurant Ventures Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Harrisons and Bucci Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the The Trustee for the LW Family Trust & The Trustee for the Mary Patrick Family Trust T/As Port Restaurant Ventures Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 40 employees who are engaged at the applicant’s restaurant in Port Douglas, Queensland. It does not cover the restaurants’ 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 23 August 2013, and voting for the Agreement’s approval took place on between 20 September and 14 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 28 of the 33 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Patrick, Director, 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’). Ms Patricksaid 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 allowances and penalty rates for work performed on weekends have been loaded into a higher flat rate of pay. 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 Dynamics appeared 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 were approximately 11% higher than the base rates of pay under the Modern Award. An exercise had been undertaken to arrive at these calculations on the basis of historical rosters at the restaurant. 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 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 The Trustee for the LW Family Trust & The Trustee for the Mary Patrick Family Trust T/As Port Restaurant Ventures 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

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved The Trustee for The LW Family Trust & The Trustee for The Mary Patrick Family Trust, applicants, and various respondents including employees of Harrisons and Bucci Restaurant. The applicants sought approval for a new enterprise bargaining agreement, the Port Restaurant Ventures Enterprise Bargaining Agreement 2013, which they proposed to implement at the restaurant. The dispute arose from the applicants' desire to introduce changes to the employees' working conditions and remuneration, which were met with opposition from the employees.

The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement covered a single enterprise, if it was made in good faith, and if it complied with the procedural requirements. The applicants argued that the agreement was necessary to maintain the business's viability and competitiveness, while the respondents contended that the changes would adversely affect their working conditions and entitlements.

The Commission found that the proposed agreement did indeed cover a single enterprise, as the applicants and respondents were engaged in a common industry and the agreement addressed their shared interests. The Commission also concluded that the agreement was made in good faith, as it was the result of genuine negotiations between the parties. Furthermore, the Commission determined that the agreement complied with the procedural requirements, including the provision of a copy of the agreement to the Fair Work Ombudsman and the necessary notices to employees. Consequently, the Commission approved the Port Restaurant Ventures Enterprise Bargaining Agreement 2013, subject to certain minor modifications to ensure compliance with the Fair Work Act.

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