Hogs Breath Cafe Victoria Point

[2017] FWCA 2626

[2017] FWCA 2626

FAIR WORK COMMISSION

DECISION

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

Hogs Breath Cafe Victoria Point
(AG2017/1199)

VICTORIA POINT HOGS PTY LTD - ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 MAY 2017

Application for approval of the Victoria Point Hogs Ptd 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 Victoria Point Hogs Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover all 30 employees who are engaged at the applicant’s restaurant in Victoria Point, QLD. 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 27 February 2017, and voting for the Agreement’s approval took place on 25 March 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 24 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 April 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Richters, General Manager, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Richters 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 13-14% above the Award. Mr Richtersalso 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 Richters 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 Richters described the operating hours of the business and the rosters of employees: the restaurant is open from Monday to Sunday, from around 11am to 9pm, Monday to Friday and 11am to 9.30pm on Saturdays and Sundays. He said that no 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 Victoria Point Hogs Pty Ltd – Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 12 May 2017 and have a nominal expiry date 1 November 2020.

DEPUTY PRESIDENT

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