Phyllisbird Pty Ltd

[2017] FWCA 1000

[2017] FWCA 1000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Phyllisbird Pty Ltd
(AG2017/210)

PHYLLISBIRD PTY LTD - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 20 FEBRUARY 2017

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

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Phyllisbird 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 Phyllisbird Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 17 employees who are engaged in the applicant’s Mexican restaurant in Northbridge, Western Australia. 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 11 November 2016, and voting for the Agreement’s approval took place on 2 December 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 January 2017. While 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 25 January 2017 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Kentwell, Director identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Kentwellsaid 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 which are 13% above the Award. Mr Carroll said that there were a number of other provisions which had been incorporated into the ‘loaded’ rate of pay, including no meal or split shift allowances and reduced overtime penalties. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 8 February 2017, Mr Agnew, Solicitorappeared for the applicant with Mr Kentwell. 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. Mr Agnew had provided indicative rosters and wage calculations which he said showed employees were ‘better off’ compared with the reference instrument. Mr Kentwell explained that the company is currently trialling different operating hours. Rather than closing at 10pm, he explained that it was remaining open until 11pm and in future it may be open later than midnight. I raised with Mr Agnew that the rosters and wage comparisons he submitted were premised on all employees finishing at 10pm. I sought clarification of whether this impacted on his calculations. Mr Agnew said that employees are still ‘better off’ under the Agreement if they work until 11pm. Further, should the Company be open later than midnight, the Agreement also provides for a late work penalty of $3 per hour which would ensure that employees who work past midnight would still remain ‘better off’ when compared with the reference instrument. Mr Kentwell also referred to the Agreement provision for the employer to pay employees’ travel expenses if they work later than midnight, including via Uber. On balance, I am satisfied the Agreement passes the BOOT.

[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 Phyllisbird Pty Ltd - Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 15 February 2017 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE423391  PR590364>