JKB Management Pty Ltd

[2014] FWCA 4236

[2014] FWCA 4236

FAIR WORK COMMISSION

DECISION

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

JKB Management Pty Ltd
(AG2014/1329)

JKB MANAGEMENT PTY LTD - ENTERPRISE AGREEMENT 2013.

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 1 JULY 2014

Application for approval of the JKB Management Pty Ltd - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by JBK Management 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 JKB Management Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 40 employees who are engaged at the applicant’s franchise restaurant, trading as Dome Kelmscott, near Armdale, South East Perth, Western Australia. 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 27 June 2013, and voting for the Agreement’s approval took place on 13 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 28 of the 30 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was filed outside of the 14 days required by s 186(3)(a). Given that there is no prejudice to the employees to be covered by the proposed enterprise agreement and that employees are being paid at the rates of pay prescribed there under, I consider it fair to extend that period to 5 June 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Hill, Director of JKB Management Pty Ltd identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Hill said that the Agreement does provide for some terms and conditions that are less beneficial than those in the reference instruments, including loaded rates which do not include weekend penalties or public holiday rates, and the removal of meal, split shift, tool and special clothing allowances and other non applicable allowances. However, the applicable allowances and penalty rates have been loaded into base rates of pay which are 6.4 - 9.8% higher for permanent employees and 31.4 - 34.8% higher for casual employees. Rates of pay are to be adjusted in accordance with the rates prescribed in clause 3.2.1 of the Agreement and will apply from the first pay period after the date of approval of the agreement. Rates of pay will be further adjusted on 1 July each year during the Agreement’s nominal term, 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 7.1 and 7.4 respectively, and a dispute resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 25 June 2014, Mr C Agnew, Solicitor, appeared with Mr G Hill for the applicant. Mr Agnew 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 Agnew identified other similar agreements which have been approved by the Commission in recent times.

[5] 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 JKB Management Pty Ltd - Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 2 July 2014 and have a nominal expiry date of 1 July 2016.

DEPUTY PRESIDENT

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