Mooz Pty Ltd t/as The APO

[2016] FWCA 4534

[2016] FWCA 4534

FAIR WORK COMMISSION

DECISION

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

Mooz Pty Ltd t/as The APO
(AG2016/1215)

THE APO - ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2016

Application for approval of the Apo - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by MOOZ Pty Ltd t/as The APO (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The APO – Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 14 employees who are employed at the applicant’s restaurant/bar in Fortitude Valley, Queensland.

[2] The employees were last notified of their representational rights on 13 April 2016, and voting for the Agreement’s approval took place between 5 and 12 May 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 9 of the 13 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr E Moubarak, Director, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Moubaraksaid the Agreement does not provide for penalty rates for work performed on weekends, nights and public holidays, but that these had been ‘loaded’ into higher base rates of pay. 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 4 July 2016, Mr C Agnew,appeared with Mr E Moubarak 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. Mr Agnew explained that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[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 APO – Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 11 July 2016 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

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