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

Printed by authority of the Commonwealth Government Printer

The case involved Hurricane's Management Pty Ltd, trading as Hurricane's Grill Bondi Beach, which applied for the approval of the Florian Enterprise Agreement. This application was made to the Fair Work Commission. The nature of the dispute centred on whether the terms and conditions of the proposed agreement met the requirements of the Fair Work Act 2009. The applicant, Hurricane's Management, argued that the agreement was fair and reasonable, while the respondent, represented by the Fair Work Commission, needed to ensure that the agreement complied with the Act.

The legal issues before the court were whether the terms of the Florian Enterprise Agreement provided for fair and reasonable pay and conditions, including reasonable hours of work, and whether the agreement adequately covered the necessary procedural safeguards for its negotiation and approval. Additionally, the court needed to determine if the agreement contained all the prescribed minimum terms as outlined in the Fair Work Act.

The court examined the negotiation process, the content of the agreement, and its compliance with statutory requirements. It found that the agreement was negotiated in good faith, covered all prescribed minimum terms, and provided fair and reasonable pay and conditions. The court also noted that the agreement included procedural safeguards and was not materially defective. As such, the court approved the Florian Enterprise Agreement, affirming its compliance with the Fair Work Act.

The final orders of the court were to approve the Florian Enterprise Agreement, allowing it to be registered and enforceable under the Fair Work Act. The agreement was deemed to meet all statutory requirements, ensuring that it provided fair and reasonable terms for the employees involved.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established