Maya Partners Pty Ltd T/A Nando’s Buranda

[2016] FWCA 2184

[2016] FWCA 2184

FAIR WORK COMMISSION

DECISION

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

Maya Partners Pty Ltd T/A Nando’s Buranda
(AG2016/510)

NANDO'S BURANDA ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 APRIL 2016

Application for approval of the Nando's Buranda Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Maya Partners 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 Nando’s Buranda Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 10 employees who are located at the applicant’s restaurant in Buranda, Queensland.

[2] The employees were last notified of their representational rights on 20 December 2015, and voting for the Agreement’s approval took place on 24 February 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, nine of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 March 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Gaurav Sharma, Director, identified the Restaurant Industry Award 2010 (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sharma indicated that the Agreement provides for a number of conditions that are in excess of, or more beneficial than the Award. The base rates of pay under the Agreement are 9% higher than the Award, casual employees receive loading on the higher Agreement base rate and overtime rates are applied on the loaded hourly rate of pay. The Agreement does not provide for evening, weekend or holiday penalty rates or annual leave loading. However these have been ‘loaded’ into the base rate of pay. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 26 and 27 respectively, and a disputes resolution procedure at clause 25.3 only provides for consent arbitration by the Commission.

[4] At a hearing of the application on 6 April 2016, Mr David Price, Employee Relations Consultant, appeared for the Applicant. Mr Price 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. Rates of pay are to be annually adjusted to maintain the 9% differential with the Award rate. At the Commission’s request, Mr Price provided an indicative employee roster to demonstrate the BOOT had been satisfied.

[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 Nando’s Buranda Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 13 April 2016 and have a nominal expiry date of 1 February 2020.

DEPUTY PRESIDENT

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