No Black Tie Pty Ltd

[2013] FWCA 4983

[2013] FWCA 4983

FAIR WORK COMMISSION

DECISION

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

No Black Tie Pty Ltd
(AG2013/1750)

THE LANEWAY LOUNGE ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JULY 2013

Application for approval of The Laneway Lounge Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by No Black Tie 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 Laneway Lounge Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 5 employees who are currently employed at the applicant’s restaurant in Perth, Western Australia. I understand that the applicant intends to expand this workforce to 25 employees.

[2] The employees were last notified of their representational rights on 29 May 2013, and voting for the Agreement’s approval took place on 28 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on28 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Yung Seun Kuan identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Kuansaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay of 1% above those under the Award. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Parts 9 and 10 respectively, and a disputes resolution procedure Part 8 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 July 2013, Mr G McCorry appeared for the applicant. Mr McCorry 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. He explained that the Agreement provided for a six monthly audit of salary in comparison to wages as this reflects existing arrangements at the restaurant.

[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 Laneway Lounge Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 18 July 2013 and have a nominal expiry date of 17 July 2017.

DEPUTY PRESIDENT

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