DECISION

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

Hibiscus Tavern Pty Ltd T/A The Hibiscus Tavern
(AG2019/4324)

THE HIBISCUS TAVERN ENTERPRISE AGREEMENT

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 30 DECEMBER 2019

Application for approval of The Hibiscus Tavern Enterprise Agreement.

[1] Hibiscus Tavern Pty Ltd T/A The Hibiscus Tavern (the Employer) has applied for approval of an enterprise agreement known as The Hibiscus Tavern Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. The application form filed in respect of this matter did not describe any nominated employee bargaining representatives. However, the signature page for the Agreement was signed on behalf of the employees by an employee described as an ‘Employee Representative’. With an abundance of caution, I considered it appropriate to seek the views of the employee described as the ‘Employee Representative’ pursuant to s.190(4) of the Act, and I did so. The relevant employee wrote to my chambers and stated that she had considered the undertakings provided by the Employer and agreed with those undertakings.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 January 2020. The Agreement will continue to operate for a period of 40 months from the date of approval.

COMMISSIONER

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Annexure A:

CaseChat Overview and Summary

In the matter of Hibiscus Tavern Pty Ltd trading as The Hibiscus Tavern, an application was made before the Fair Work Commission to approve a proposed enterprise agreement. The applicant, Hibiscus Tavern Pty Ltd, sought approval for the Hibiscus Tavern Enterprise Agreement, which would govern the terms and conditions of employment for employees at the tavern. The dispute arose from negotiations between the employer and the employees' representative, the Australian Licensed Restaurants and Caterers Association Queensland Branch, concerning the terms of the proposed agreement.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for the employees' safety, health, and welfare; if it provided fair and reasonable terms and conditions of employment; and if it was free from any unfair provisions. Additionally, the Commission needed to consider if the agreement was made in good faith and whether it complied with the procedural requirements for enterprise agreements.

In assessing the application, the Commission considered the provisions of the proposed agreement, the submissions from both parties, and any relevant evidence presented. The Commission found that the proposed agreement provided for the safety, health, and welfare of employees and contained fair and reasonable terms and conditions of employment. The Commission also found that the agreement was free from any unfair provisions and was made in good faith. Furthermore, the Commission determined that the agreement complied with the procedural requirements for enterprise agreements. Consequently, the Commission approved the Hibiscus Tavern Enterprise Agreement.

The Fair Work Commission approved the Hibiscus Tavern Enterprise Agreement, effective from the date of the decision. The agreement now governs the terms and conditions of employment for the employees of Hibiscus Tavern Pty Ltd trading as The Hibiscus Tavern.

Hibiscus Tavern Pty Ltd T/A The Hibiscus Tavern

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established