Kellett Street Pty Ltd t/as Libertine Bar and Restaurant

[2013] FWCA 7599

[2013] FWCA 7599

FAIR WORK COMMISSION

DECISION

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

Kellett Street Pty Ltd t/as Libertine Bar and Restaurant
(AG2013/2887)

LIBERTINE - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 15 OCTOBER 2013

Application for approval of the Libertine - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kellett Street Pty Ltd t/as Libertine Bar and Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Libertine - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 18 employees who are engaged at the applicant’s restaurant, Libertine Bar and Restaurant, in Brisbane, Queensland. The Agreement does not cover Managers and Assistant Managers of the restaurant, whose employment is governed by common law contracts. 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 30 April 2013, and voting for the Agreement’s approval took place on 12 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 11 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 September 2013. I note that the employees have already begun to be paid pursuant to the terms of the Agreement. I consider it fair, in all the circumstances, to extend the time for filing to 16 September 2013 (in accordance with s 185(3)(b) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Baturo identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Baturosaid that the Agreement does contain 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 three hours for casual 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 7.3 respectively and a disputes resolution procedure at clause 2.4 provides for conciliation only by the Commission.

[4] At a hearing of the application on 30 September 2013, Mr C Agnew, Solicitor,appeared with Mr A Baturo 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. He explained that the trade of the applicant’s restaurant was largely dependent on events occurring at the nearby Suncorp Stadium. He also offered to provide an undertaking correcting what was said to be a typographical error in clause 3.2.2 so that rates of pay are to be increased by 3% from 1 July 2014 and 1 July 2015. 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 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 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Libertine - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 7 October 2013 and have a nominal expiry date of 1 December 2016.

DEPUTY PRESIDENT

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