Oneram Pty Ltd t/as Guzman y Gomez Shellharbour Summary

[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

Printed by authority of the Commonwealth Government Printer

Oneram Pty Ltd, trading as Guzman y Gomez Shellharbour, applied for the approval of the Enterprise Agreement 2014-2018, which was to be assessed under the Fair Work Act 2009. The application was made to the Fair Work Commission, which is the body responsible for resolving workplace disputes and overseeing the enforcement of employment-related laws in Australia. The dispute centered around the terms and conditions of employment as outlined in the proposed agreement.

The central legal issues before the Commission were whether the agreement met the criteria for approval as stipulated in the Fair Work Act. This included examining whether the agreement was made in good faith and free from coercion, whether it contained minimum entitlements as required by the National Employment Standards, and if it adhered to the relevant provisions of the Fair Work Act concerning procedural fairness. Additionally, the Commission needed to determine if the agreement provided for the proper classification of employees and whether it contained provisions that were consistent with the principles of the Act.

The Commission found that the agreement did not meet the criteria for approval as it failed to include a clause that provided for the classification of employees. The absence of this clause meant that the agreement did not adequately address the classification of workers, which is a fundamental aspect of employment agreements under the Fair Work Act. The Commission also noted that while the agreement contained provisions that were largely in compliance with the Act, the omission of the employee classification clause was a significant deficiency. Consequently, the application for approval was dismissed.

In its decision, the Commission emphasised the importance of including a classification clause in enterprise agreements, as it is essential for ensuring that employees are properly classified and that their rights are protected. The Commission did not make any orders as the application for approval was dismissed. This decision underscores the necessity for comprehensive and compliant enterprise agreements in the Australian workplace.

Oneram Pty Ltd t/as Guzman y Gomez Shellharbour

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established