Koray Ozbay Holdings Pty Ltd t/as Oporto Burwood

[2013] FWCA 3524

[2013] FWCA 3524

FAIR WORK COMMISSION

DECISION

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

Koray Ozbay Holdings Pty Ltd t/as Oporto Burwood
(AG2013/1258)

KORAY OZBAY HOLDINGS PTY LTD - ENTERPRISE AGREEMENT 2012

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JUNE 2013

Application for approval of the Koray Ozbay Holdings Pty Ltd - Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Koray Ozbay Holdings 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 Koray Ozbay Holdings Pty Ltd - Enterprise Agreement 2012 (the ‘Agreement’). The Agreement is to cover 18 employees who are employed at the applicant’s fast food franchise (commonly known as ‘Oporto’) in Burwood, New South Wales. It is in identical, or substantially identical terms to five other agreements approved by me and other members of the Commission.

[2] The employees were last notified of their representational rights on 4 December 2012, and voting for the Agreement’s approval took place on 21 January 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees that voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 May 2013 - some four months after the vote for approval. Mr C Agnew, Solicitor for the applicant, informed the Commission that the application was filed out of time due to him being based in Brisbane and his client being in Sydney. He sought an extension of time for filing the application and submitted that the employees of the applicant had been paid according to the rates in the Agreement since the ballot for the approval and that only two employees had left the applicant’s employment in that time. There would be no prejudice to those employees if the Agreement otherwise meets the BOOT.

[3] Given the various means of modern communications, I find it difficult to accept a submission that Mr Agnew, being based in Brisbane, and his client in Sydney, created difficulties for lodging the application within time. I was of a mind to refuse the application for an extension of time. However, in light of Mr Agnew’s submissions that greater attention will be paid to any further Agreements being lodged within time and I would be reluctant to require a new ballot of employees to be held, I find that it would be fair in all the circumstances to grant an extension of time for filing the application to 23 May 2013, pursuant to s 185(3)(b) of the Act.

[4] In the Employer’s Declaration in support of the application (Form F17) Mr B Ozbay, Director, identified the Fast Food Industry Award 2010 [MA000003] and the Shop Employees (State) Award [AN120499] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Ozbaysaid that the Agreement provides for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a job search entitlement in the event of redundancy, a minimum engagement of two hours and the lack of provision for annual leave loading, which was said to be ‘loaded’ into the Agreement rates of pay. However, the Agreement also provides for terms and conditions that are more beneficial than, or in excess of those under the Award. including higher rates of pay and an increased period of notice in the event of termination of employment where employees are 45 years of age and older. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure 2.4 provides for conciliation by the Commission.

[5] At a hearing of the application on 4 June 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. He explained that the applicant’s fast food restaurant is in a shopping centre food court and that accordingly, it generally operates during daytime hours, except for Thursday late night shopping. Mr Agnew also provided undertakings to increase the rates of pay by 1.5% to ensure that the small differential between the Award and Agreement rates sufficiently made up for the lack of provision for annual leave loading in the Agreement. 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’. Having received these undertakings, I am satisfied that the Agreement passes the BOOT.

[6] 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 Koray Ozbay Holdings Pty Ltd - Enterprise Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 11 June 2013 and have a nominal expiry date of 1 March 2015.

DEPUTY PRESIDENT

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