J Foodservices Consulting Pty Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

J Foodservices Consulting Pty Ltd sought the Fair Work Commission's approval for the Nathania Springs Receptions Enterprise Agreement 2013. The applicant, an employer, aimed to have the agreement recognised under the Fair Work Act 2009. The agreement was between the employer and its employees, who were primarily receptionists and administrative staff.

The central legal issue before the Commission was whether the agreement met the statutory requirements under the Fair Work Act for an enterprise agreement. Specifically, the Commission had to determine if the agreement had been fairly and genuinely negotiated, covered the necessary aspects of employment, and adhered to the procedural and substantive fairness standards. The Commission also considered whether the agreement adequately protected employees' rights and interests, particularly given the vulnerable nature of the workforce.

In reaching its decision, the Commission examined the negotiation process, the contents of the agreement, and the compliance with relevant statutory provisions. It was noted that the agreement provided for a range of terms and conditions, including wages, hours of work, and leave provisions. The Commission found that the agreement had been negotiated in good faith and that it met the necessary standards for procedural and substantive fairness. It also determined that the agreement adequately protected the employees' interests, particularly in light of their specific roles and the nature of their employment.

The Fair Work Commission approved the Nathania Springs Receptions Enterprise Agreement 2013, recognising it as a registered agreement under the Fair Work Act. The approval was based on the finding that the agreement had been fairly and genuinely negotiated, covered the required aspects of employment, and complied with the statutory requirements for procedural and substantive fairness.

J Foodservices Consulting Pty Ltd

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