Hogs Breath Cafe Albury

[2017] FWCA 2263

[2017] FWCA 2263

FAIR WORK COMMISSION

DECISION

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

Hogs Breath Cafe Albury
(AG2017/944)

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 26 APRIL 2017

Application for approval of the KS Pike 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 (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the KS Pike Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover all 18 employees who are engaged in the applicant’s restaurant in Albury, Victoria. 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 8 July 2016, and voting for the Agreement’s approval took place on 19 March 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 17 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 March 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Pike, 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 Pike 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 pay between 11-12% above the Award. Mr Pike 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 18 March 2017, Mr C Agnew appeared with Mr Pike 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 Pike described the operating hours of the business and the rosters of employees: the restaurant is open from Monday to Sunday, from around 11.30am and the kitchen closes at 9pm. He said that no employee works beyond 10pm, nor would any employee work solely on weekends. 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 KS Pike Pty Ltd – Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 25 April 2017 and have a nominal expiry date 1 January 2020.

DEPUTY PRESIDENT

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