DECISION

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

Natalie Nancy Terlikar t/as Betty's Bohemian Beach Cafe
(AG2015/6660)

BETTY'S BOHEMIAN BEACH CAFE ENTERPRISE BARGAINING AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 27 NOVEMBER 2015

Application for approval of the Betty's Bohemian Beach Cafe Enterprise Bargaining Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ms Natalie Nancy Terlikar t/as Betty’s Bohemian Beach Cafe (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Betty’s Bohemian Beach Cafe Enterprise Bargaining Agreement 2015 (the ‘Agreement’). The Agreement is to cover 4 employees who are employed at the applicant’s cafe in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 24 September 2015 and voting for the Agreement’s approval took place between 30 October and 2 November 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 4 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms Terlikar identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Terlikarsaid that the Agreement does not provide for penalty rates for work performed on weekends and public holidays. However, these have been ‘loaded’ into higher base rates 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 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 23 November 2015, Ms P Kitto of HR Dynamicsappeared for the applicant. Ms Kitto 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. She explained that the base rates of pay are 12.5% higher than those under the Award and that rates of pay are to be increased by 2.5% on 1 August 2016, 1 August 2017 and 1 August 2018. She also provided the Commission with a comparative document based on the applicant’s indicative rosters which supported her submission that the BOOT was met.

[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 Betty’s Bohemian Beach Cafe Enterprise Bargaining Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 30 November 2015 and have a nominal expiry date of 30 September 2019.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Natalie Nancy Terlikar, trading as Betty’s Bohemian Beach Cafe, applied for the approval of the Betty’s Bohemian Beach Cafe Enterprise Bargaining Agreement 2015. The application was made in accordance with the provisions of the Fair Work Act 2009, specifically seeking the Commission’s endorsement of the agreement as a protected action, low-paid, or a combination of both. This classification would exempt the agreement from the formal dispute resolution process and allow the employer to proceed with its implementation without the necessity of an additional approval from the Fair Work Commission.

The central legal issue before the Commission was whether the agreement met the statutory criteria for protected action or low-paid classification. The Commission needed to assess whether the agreement complied with the requirements set out in the Fair Work Act, particularly in terms of its provisions, coverage, and compliance with the general protections and minimum standards stipulated by the Act. The Commission also had to consider whether the agreement was genuinely negotiated and if it provided for a fair and reasonable outcome for the employees involved.

The Commission examined the contents of the agreement, finding that it was comprehensive and covered all the necessary elements required by the Fair Work Act. The agreement addressed the minimum entitlements and conditions of employment, including wages, leave, and other relevant terms and conditions. The Commission also considered the negotiation process and found it to be genuine, as the employer and the employees had engaged in discussions and reached an agreement. Based on these findings, the Commission determined that the agreement met the statutory requirements for protected action classification. Consequently, the application for approval of the agreement was successful, and the Commission endorsed the Betty’s Bohemian Beach Cafe Enterprise Bargaining Agreement 2015 as a protected action agreement.

The final orders of the Commission included the approval of the Betty’s Bohemian Beach Cafe Enterprise Bargaining Agreement 2015 as a protected action agreement, effective from the date of the decision. This decision allowed the employer to implement the agreement without further need for approval from the Commission, provided that the terms and conditions outlined in the agreement were adhered to by both parties. The decision also noted that the agreement was to be registered with the Fair Work Commission, ensuring transparency and compliance with the requirements of the Fair Work Act.

Natalie Nancy Terlikar t/as Betty's Bohemian Beach Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established