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

The applicant, Onerod Investments Pty Ltd, sought approval for its 2016 Enterprise Agreement, which was contested by the respondent, the Transport Workers Union of Australia. The dispute centred on the terms of the agreement, particularly those relating to employee entitlements and the implementation of a new rostering system. The case was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and if it met the requirements for "enterprise agreements" as outlined in the legislation. Specifically, the Commission needed to determine if the agreement adequately covered the employees' pay and conditions, and if the union had been appropriately consulted during the negotiation process. Additionally, the Commission examined the fairness of the agreement's terms and the extent to which they complied with the "better off overall test".

In delivering its decision, the Commission found that the agreement did indeed meet the statutory requirements for an enterprise agreement. It was concluded that the agreement provided for fair and reasonable terms and conditions, and that the union had been sufficiently involved in the negotiation process. The Commission also found that the agreement was better off overall for the employees, as it included provisions that were advantageous to them, such as improved leave entitlements and clearer guidelines on shift patterns. Consequently, the Commission approved the Onerod Investments Pty Ltd - Enterprise Agreement 2016.

The Commission ordered that the approved agreement be registered and enforceable as of the date of the decision. The agreement was to be provided to all relevant parties, and the Commission mandated that any disputes arising from the agreement be referred to the Commission for resolution. The decision emphasised the importance of fair and transparent negotiation processes and the need for agreements to meet the statutory requirements set out in the Fair Work Act 2009.

Onerod Investments Pty Ltd

DECISION

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Legal Principle Established