Lovely Pancakes [Alinga] Pty. Ltd. t/as The Pancake Parlour Restaurant

[2014] FWCA 5414

[2014] FWCA 5414

FAIR WORK COMMISSION

DECISION

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

Lovely Pancakes [Alinga] Pty. Ltd. t/as The Pancake Parlour Restaurant
(AG2014/6907)

PANCAKE PARLOUR [A.C.T.] -ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 15 AUGUST 2014

Application for approval of the Pancake Parlour [A.C.T.]-Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lovely Pancakes [Alinga] 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 Pancake Parlour [A.C.T.] -Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with a non-Union Employee Bargaining Representative and is to cover 23 employees who are employed at the applicant’s restaurant in Canberra, Australian Capital Territory.

[2] The employees were last notified of their representational rights on 5 June 2014, and voting for the Agreement’s approval took place between 3 and 17 July 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 9 of the 16 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Mogan, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Allied Industries Catering, Cafe, Restaurant, Etc. (Australian Capital Territory) Award 1998 [AP787016CRA] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mogansaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed at night, on weekends and on public holidays and the removal of annual leave loading. However these entitlements have been ‘loaded’ into a higher base rate of pay. Rates of pay are to be increased by 3% or in accordance with the Commission’s Minimum Wage Review Decision, whichever is the greater, during each year of the nominal term of the Agreement. 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 and arbitration by the Commission.

[4] At a hearing of the application on 7 August 2014, Mr R Graham of Worksite Resolutions Pty. Ltd.appeared with Mr P Mogan for the applicant. Mr Graham 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. Mr Graham explained that a comparative analysis between the Agreement and the reference instruments using rostered hours of operation over six weeks demonstrated that employees would be between 2.32% and 14.2% better off under the Agreement. The increase due under the Agreement on 1 July 2014 had already been paid to the employees.

[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 Pancake Parlour [A.C.T.] -Enterprise Agreement 2014 Pursuant to s 54 of the Act, the Agreement shall operate from 14 August 2014 and have a nominal expiry date of 13 August 2018.

DEPUTY PRESIDENT

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