Inn Hospitality Pty Ltd

[2016] FWCA 1699

[2016] FWCA 1699

FAIR WORK COMMISSION

DECISION

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

Inn Hospitality Pty Ltd
(AG2016/200)

INN RESTAURANTS ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 MARCH 2016

Application for approval of the Inn Restaurants Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Inn Hospitality 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 Inn Restaurants Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 9 employees who are engaged as labour hire employees in the restaurant industry. 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 7 December 2015 and voting for the Agreement’s approval took place on 21 January 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the approval of the Agreement, all 8 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 February 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Evans, 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 Evanssaid that the Agreement does provide for some terms and conditions that are less beneficial than the Award, including the removal of penalty rates and some non-applicable allowances. However, these have been ‘loaded’ into higher rates of pay. The Agreement provides for the mandatory flexibility term at cl 25 and the mandatory consultation term at clauses 23 and 24, and a disputes resolution procedure at clause 26 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 17 March 2016, Mr D Evans appeared for the applicant. Mr S Ong appeared for United Voice (the ‘Union’) on the basis that the Commission would be assisted in informing itself in relation to this application by the views of the Union (s 590). I note, however, that the Union did not seek to be covered by the Agreement (s 183), nor was it a bargaining representative for the employees to be covered by the Agreement. Mr Evans 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 Evans agreed to provide calculations based on indicative rosters to address concerns raised by the Union that the ‘loaded’ rates of pay did not meet the BOOT. Mr Evans subsequently provided an undertaking increasing base rates of pay for permanent employees and trainees. While Mr Ong suggested that the ‘rostering formula’ on which the applicant’s BOOT calculations were based should themselves be incorporated into an undertaking, I do not consider this to be appropriate, given that it would severely restrict the applicant’s flexibility with rostering of staff. Having considered the undertaking, and the indicative rosters filed by Mr Evans,I am satisfied that the Agreement meets the BOOT. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation, the Agreement itself and the undertaking, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Inn Restaurants Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 7 April 2016 and have a nominal expiry date of 6 April 2020.

DEPUTY PRESIDENT

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