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

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Maya Partners Pty Ltd, trading as Nando's Buranda, and its employees. The dispute centred on the application for the approval of the Nando's Buranda Enterprise Agreement 2016. The case was heard in the Fair Work Commission, which has jurisdiction over matters related to enterprise agreements under the Fair Work Act 2009. The primary issue before the Commission was whether the proposed enterprise agreement met the legal criteria for approval, specifically whether it complied with the good faith bargaining requirements and provided for the fair and efficient resolution of workplace issues.

The Fair Work Commission examined the process of bargaining and the content of the proposed agreement to determine if it was made in good faith. The Commission considered whether the parties had negotiated genuinely and had made reasonable efforts to reach an agreement. Additionally, the Commission assessed the fairness and efficiency of the agreement's provisions, including the terms and conditions of employment, wages, and dispute resolution mechanisms. The Commission also had to consider if the agreement provided for the protection of employees' rights and interests and if it was in line with the objectives of the Fair Work Act.

After a thorough review of the evidence and submissions, the Fair Work Commission found that the proposed enterprise agreement met the necessary legal standards for approval. The Commission determined that the bargaining process was conducted in good faith, with both parties making reasonable efforts to reach an agreement. The content of the agreement was also deemed to be fair and efficient, providing for the resolution of workplace issues in a manner that balanced the interests of both the employer and the employees. Consequently, the Commission approved the Nando's Buranda Enterprise Agreement 2016, ensuring its implementation as a binding enterprise agreement between Maya Partners Pty Ltd and its employees.

Maya Partners Pty Ltd T/A Nando’s Buranda

DECISION

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