J Foodservices Consulting Pty Ltd

[2013] FWCA 9175

[2013] FWCA 9175

FAIR WORK COMMISSION

DECISION

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

J Foodservices Consulting Pty Ltd
(AG2013/11418)

NATHANIA SPRINGS RECEPTIONS ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 NOVEMBER 2013

Application for approval of the Nathania Springs Receptions Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by J Foodservices Consulting 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 Nathania Springs Receptions Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with five Employee Bargaining Representatives. The Agreement is to cover 37 employees who are engaged at the applicant’s wedding reception centre in Monbulk, Victoria.

[2] The employees were last notified of their representational rights on 14 August 2013, and voting for the Agreement’s approval took place between 18 and 29 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms H Celerier, Director identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998 [AP787213] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Celeriersaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and other unsociable hours. However, these penalty rates have been factored into a higher loaded base rate of pay. The applicant had performed calculations to demonstrate that employees would be better off overall than if the rates under the Award applied. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.6 and 3.1 respectively, and a disputes resolution procedure at clause 3.2 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 19 November 2013, Mr R Cannell of Robert Cannell and Associates appeared with Mr J Celerier and Ms H Celerier for the applicant. Mr D Jackson, Ms M Fleming and Mr M Hillman appeared in their respective capacities as Employee Bargaining Representatives. Mr Cannell 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. He explained that the employees were covered by an Agreement which was due to expire shortly. He also said that the loaded rates of pay meant that permanent employees were 1.9% better off and casual employees 7% better off than under the Award.

[5] Having heard the parties’ 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 Nathania Springs Receptions Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 26 November 2013 and have a nominal expiry date of 25 November 2017.

DEPUTY PRESIDENT

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