Hurricane's Management Pty Ltd t/as Hurricane's Grill Bondi Beach

[2015] FWCA 2967

[2015] FWCA 2967

FAIR WORK COMMISSION

DECISION

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

Hurricane's Management Pty Ltd t/as Hurricane's Grill Bondi Beach
(AG2015/839)

FLORIAN ENTERPRISE AGREEMENT

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MAY 2015

Application for approval of the Florian Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Hurricane’s Management Pty Ltd t/as Hurricane’s Grill Bondi Beach (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Florian Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 192 employees, other than Senior Managers, who are employed at the applicant’s restaurants in New South Wales and Queensland. 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 February 2015 and voting for the Agreement’s approval took place between 28 and 31 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 79 of the 121 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 April 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Teixeira, Director, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

• Restaurant Industry Award 2010 [MA000119];



• Fast Food Industry Award 2010 [MA000003];



• Restaurant, &c., Employees (State) Award - New South Wales [AN120468];



• Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052]; and



• Shop Employees (State) Award [AN120499].

[4] Mr Teixeirasaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the averaging of hours of work over eight, rather than four weeks and the removal of penalty rates for work performed after 9pm and a lack of provision for annual leave loading. However, the Agreement provides for higher rates of pay and more generous meal entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 27 and 26 respectively, and a disputes resolution procedure at clause 25 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 14 April 2015, Ms H Ellis of The Workplace Employment Lawyers Pty Ltdappeared for the applicant. Ms Ellis 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 rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[6] 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 Florian Enterprise Agreement.Pursuant to s 54 of the Act, and in accordance with the request of the applicant, the Agreement shall operate from 4 May 2015 and have a nominal expiry date of 3 May 2019.

DEPUTY PRESIDENT

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