Onerod Investments Pty Ltd

[2016] FWCA 9276

[2016] FWCA 9276

FAIR WORK COMMISSION

DECISION

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

Onerod Investments Pty Ltd
(AG2016/7393)

ONEROD INVESTMENTS PTY LTD - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 30 DECEMBER 2016

Application for approval of the Onerod Investments Pty Ltd - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal 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 Onerod Investments Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 26 employees who are engaged in the applicant’s restaurant in Narellan, QLD. 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 14 September 2016, and voting for the Agreement’s approval took place on 21 October 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 13 of the employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 December 2016. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 1 December 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P O’Neil identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr O’Neilsaid that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of pay. He said the business operated in such a way that the majority of employees’ shifts are performed during the week and that it does not and would not roster employees to work solely on weekends. Mr Agnew, the applicant’s solicitor, indicated that the applicant had undertaken modelling of these rates which showed the employees to be ‘better off overall’. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. In these circumstances, 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 23 December 2016, Mr Agnew, appeared for the applicant with Mr P O’Neil. 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.

[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 Onerod Investments Pty Ltd - Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 30 December 2016 and have a nominal expiry date 1 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE422850  PR589017>