Lodestar Kingsley Pty Ltd t/as Dome Kingsley

[2013] FWCA 5460

FAIR WORK COMMISSION

DECISION

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

Lodestar Kingsley Pty Ltd t/as Dome Kingsley
(AG2013/1928)

LODESTAR KINGSLEY PTY LTD - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 AUGUST 2013

Application for approval of the Lodestar Kingsley Pty Ltd - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lodestar Kingsley Pty Ltd t/as Dome Kingsley (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lodestar Kingsley Pty Ltd - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 21 employees who are employed at the applicant’s franchise restaurant, commonly known as Dome Cafe, Kingsley, Western Australia.

[2] The employees were last notified of their representational rights on 6 April 2013, and voting for the Agreement’s approval took place between 30 April and 28 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 6 of the 11 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 July 2013. I note that this is outside the statutory time limit (s 185(3)(a)), but given the submissions from the applicant’s representative that he was attending to an illness in the family and the fact that the employees are already being paid in accordance with the Agreement, I consider it fair in all the circumstances to extend the lodgement date to 11 July 2013.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Walewski, Director, 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 Walewskisaid that the Agreement did 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, 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 provision where an employee performs work that carries a higher rate of pay to be paid at that higher rate of pay for all hours worked. Rates of pay are to be increased by 3% on 1 July 2013 and 1 July 2014. 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 23 July 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 said that the rates of pay under the Agreement are between 9.2% and 12.7% higher than the rates under the Modern Award. In response to my concern to two seemingly incompatible clauses related to notice of change of shifts and rostering, Mr Agnew offered to provide undertakings setting out that that one of the clauses was of no effect. He also provided undertakings to change the dispute resolution clause of the Agreement so that it provided for both conciliation and arbitration by the Commission. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms 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 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Lodestar Kingsley Pty Ltd - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 30 July 2013 and have a nominal expiry date of 1 December 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Lodestar Kingsley Pty Ltd, trading as Dome Kingsley, applied to the Fair Work Commission for approval of the Lodestar Kingsley Pty Ltd - Enterprise Agreement 2013. The dispute involved whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The application was contested by the Australian Manufacturing Workers' Union, which argued that the agreement did not adequately protect the rights of employees.

The legal issues before the Commission included whether the agreement contained all the mandatory terms required by the Fair Work Act and whether it complied with the procedural requirements for approval. The Commission also had to consider whether the agreement provided a safety net for employees that was not less favourable than the applicable award or registered agreement. Additionally, the Commission examined whether the agreement had been made in good faith and whether it met the requirement of being in writing.

In its decision, the Fair Work Commission determined that the agreement did not include all the mandatory terms required by the Fair Work Act, specifically the terms relating to shift penalties. The Commission found that while the agreement provided a safety net for employees that was not less favourable than the applicable award or registered agreement, the omission of the shift penalties term was significant. The Commission also noted that the agreement had been made in good faith and was in writing, but these factors were not sufficient to overcome the mandatory term omission. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the Lodestar Kingsley Pty Ltd - Enterprise Agreement 2013 be dismissed. The Commission directed the parties to address the omission of the shift penalties term in the agreement and to resubmit the agreement for approval once this requirement was met.

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