Oneram Pty Ltd t/as Guzman y Gomez Shellharbour

[2014] FWCA 1808

[2014] FWCA 1808

FAIR WORK COMMISSION

DECISION

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

Oneram Pty Ltd t/as Guzman y Gomez Shellharbour
(AG2014/371)

ONERAM PTY LTD ENTERPRISE - AGREEMENT 2014-2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2014

Application for approval of the Oneram Pty Ltd - Enterprise Agreement 2014-2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Oneram Pty Ltd t/as Guzman y Gomes Shellharbour (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Oneram Pty Ltd - Enterprise Agreement 2014-2018 (the ‘Agreement’). The Agreement is to cover 25 employees, apart from Restaurant Managers, who are engaged at the applicant’s franchise restaurant in Shellharbour, commonly known as Guzman y Gomez. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 January 2014 and voting for the Agreement’s approval took place on 21 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 14 of the 18 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P O’Neill, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Restaurants, &c., Employees (State) Award [AN120468] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr O’Neillsaid that the Agreement did contain some terms and conditions that were less beneficial than those under the reference instruments, including the removal of a number of allowances and penalty rates for work performed on Saturdays, Sundays and Public Holidays. However, these have been loaded into higher flat rates of pay. The Agreement also provides for a more generous higher duties allowance and longer minimum engagements for part time employees. 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 6 March 2014, Mr C Agnew, Solicitor,appeared with Mr P O’Neill 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. He explained that, unlike some other Guzman y Gomez franchise restaurants, this restaurant was a licensed restaurant that operated in a manner similar to a cafe. He also submitted that rates of pay are to be increased by 25c per hour on 1 July 2014, 1 July 2015, 1 July 2016 and 1 July 2017 or by reference to the Commission’s Minimum Wage Review decision, whichever is higher. He provided undertakings to clarify the method by which rates of pay are adjusted. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190, 191 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Oneram Pty Ltd - Enterprise Agreement 2014-2018.Pursuant to s 54 of the Act, the Agreement shall operate from 13 March 2014 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

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