Kaldome Investments Pty Ltd

[2013] FWCA 5970

[2013] FWCA 5970

FAIR WORK COMMISSION

DECISION

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

Kaldome Investments Pty Ltd
(AG2013/2224)

KALDOME INVESTMENTS PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 AUGUST 2013

Application for approval of the Kaldome Investments Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kaldome Investments 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 Kaldome Investments Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 19 employees who are employed at the applicant’s franchise restaurant, commonly known as Dome, Kalgoorlie in Western Australia.

[2] The employees were last notified of their representational rights on 21 May 2013, and voting for the Agreement’s approval took place on 23 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by a returning officer nominated by the employees, all 12 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Spratley 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 Spratleysaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments including the lack of provision of a day’s job search entitlement in cases of termination other than redundancy, the non-inclusion of an entitlement to transfer to lower paid duties in redundancy situations, the removal of a number of non-applicable allowances and the lack of provision for a minimum break between shifts. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher ‘loaded’ rates of pay, a minimum engagement of four hours for part time employees and a provision for an employee who performs work that carries a higher rate of pay to be paid at that higher rate of pay for all hours worked. 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.

[4] At a hearing of the application on 12 August 2013, Mr C Agnew, Solicitor,appeared 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 said that the applicant had recently purchased the franchise from a previous franchisor who operated under an expired collective agreement. Mr Agnew also said that the Agreement was similar in terms to two enterprise agreements recently approved by the Commission; See: Lodestar Kingsley Pty Ltd t/as Dome Kingsley [2013] FWCA 5460 and Good Fortune Coffees Pty Ltd [2013] FWCA 4962. Mr Agnew also provided undertakings so that the hourly rates of pay under the Agreement would be increased in accordance with the Commission’s Annual Minimum Wage Review Decision and to allow for the Commission to conciliate and arbitrate disputes under the disputes resolution procedure in clause 2.4. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’.

[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, 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 Kaldome Investments Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 19 August 2013 and have a nominal expiry date of 1 March 2017.

DEPUTY PRESIDENT

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