Legend Sunshine Pty Ltd

[2013] FWCA 2834

[2013] FWCA 2834

FAIR WORK COMMISSION

DECISION

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

Legend Sunshine Pty Ltd
(AG2013/1003)

LEGEND SUNSHINE PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 MAY 2013

Application for approval of the Legend Sunshine Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Legend Sunshine 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 Legend Sunshine Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 15 employees who are employed at the applicant’s coffee shop/restaurant franchise (commonly known as ‘The Coffee Club’) in Miranda, New South Wales.

[2] The employees were last notified of their representational rights on 12 March 2013, and voting for the Agreement’s approval took place on 15 April 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 15 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 April 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr N Zhao, Franchisee Partner, identified the Restaurant Industry Award 2010 [MA000119] (the ‘Modern Award’) and the Restaurants, &c., Employees (State) Award [AN120468] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Zhao said that the Agreement did provide for some terms and conditions that were less beneficial than those under the reference instruments, including the removal of annual leave loading and a number of allowances. However, Mr Zhao said that annual leave loading, laundry allowance and some penalty rates are loaded into a higher rate of pay and that the Agreement guaranteed that casual employee rates of pay will at all times remain 25% above the permanent rates of pay under the Agreement. He also said that the permanent rates of pay are to be adjusted with reference to the Commission’s Annual Minimum Wage Review decision during the nominal term of the Agreement. Mr Zhao drew attention to another enterprise agreement recently approved by the Commission as being in similar terms; See: GR8 Coffee Pty Ltd Enterprise Agreement 2013 [2013] FWCA 2246. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 5 respectively, and a disputes resolution procedure clause 4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 8 May 2013, Ms L Moddel, Solicitor and Ms P Ryan, Solicitor, of Enterprise Initiatives Pty Ltdappeared for the applicant. Ms Moddel 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. She explained that the applicant had taken over the franchise in July 2012 and that a number of transferring employees were covered by an older collective agreement. Employees who had been employed since July 2012 were covered by the Modern Award. In the course of the hearing, I raised some concerns as to whether employees who worked primarily on weekends were better off overall under the pay structure in Schedule A of the Agreement. I also noted that the expression of cl 9.1, which related to rest and meal break entitlements, was unclear. Ms Moddel provided the Commission with signed undertakings on 10 May 2013 that clarified the expression of cl 9.1 and entirely replaced Schedule A of 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’. Ms Moddel also provided the Commission with calculations that took into account the ‘loaded’ entitlements and penalty rates and illustrated that employees would be better off overall under the modified pay structure by between 0.02% and 4.8%. Having received these undertakings and examined the accompanying calculations, I am satisfied that the Agreement passes the BOOT.

[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 Legend Sunshine Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 17 May 2013 and have a nominal expiry date of 16 May 2017.

DEPUTY PRESIDENT

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