Little Italia Pty Ltd

[2013] FWCA 4993

[2013] FWCA 4993

FAIR WORK COMMISSION

DECISION

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

Little Italia Pty Ltd
(AG2013/1698)

LITTLE ITALIA ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 25 JULY 2013

Application for approval of the Little Italia Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Little Italia 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 Little Italia Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 7 employees who are engaged at the applicant’s newly established cafe, known as Cafe Domenico, in Victoria.

[2] The employees were last notified of their representational rights on 29 May 2013, and voting for the Agreement’s approval took place on 20 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 7 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Manson, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998 [AP787213] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mansonsaid that the Agreement contains some terms and conditions that are less beneficial than the reference instruments and drew attention to the removal of a number of allowances which were said to be inapplicable to the applicant’s business. There were no provisions for penalty rates for weekends or other unsociable hours. However, the Agreement provides for higher Monday to Sunday rates of pay that are between $1.70 and $2.10 higher than the hourly rates for permanent employees and between $1.48 and $1.83 higher than the hourly rates for casual employees under the Modern Award. Rates of pay are to be adjusted 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 and 6 respectively, and a disputes resolution procedure at clause 5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 July 2013, Ms L Miller, Solicitor,appeared for the applicant. Ms Miller 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 cafe is open 7am to 5pm, seven days a week and that employees are required to work both weekends and weekdays. She, said that, although a laundry allowance and annual leave loading were ‘loaded’ into the rates of pay, the Agreement still met 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Little Italia Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 19 July 2013 and have a nominal expiry date of 18 July 2017.

DEPUTY PRESIDENT

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