Hobart Hogs Pty Ltd t/a Hogs Breath Cafe Hobart

[2017] FWCA 3180

[2017] FWCA 3180

FAIR WORK COMMISSION

DECISION

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

Hobart Hogs Pty Ltd t/a Hogs Breath Cafe Hobart
(AG2017/1525)

HOBART HOGS PTY LTD - ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JUNE 2017

Application for approval of the Hobart Hogs Pty Ltd - Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal Pty Ltd on behalf of Hobart Hogs Pty Ltd t/a Hogs Breath Café Hobart (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Hobart Hogs Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover 31 employees who are engaged at the applicant’s restaurant in Hobart. 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 December 2016, and voting for the Agreement’s approval took place on 29 April 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot on 29 April 2017, 17 of the 18 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 May 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Blackstock, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Blackstock said that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of approximately 11% above the Award. Mr Agnew also said that there were a number of other provisions which had been incorporated into the ‘loaded’ rate of pay, including no meal or split shift allowances and reduced overtime penalties.

[4] At a hearing of the application on 5 May 2017, Mr C Agnew appeared with Mr T Blackstock for the applicant. Mr Agnew 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. Mr Blackstock described the operating hours of the business and the rosters of employees: the restaurant is open from Monday to Sunday, from around 11.30am to 9.30pm. He said that no employee work solely on weekends and that they are all part-time. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. On balance, 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 2.4 provides for conciliation and arbitration by the Commission.

[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 Hobart Hogs Pty Ltd – Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 7 June 2017 and have a nominal expiry date 1 January 2021.

DEPUTY PRESIDENT

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