Popolo Italian Kitchen and Bar Pty Ltd

[2013] FWCA 9483

FAIR WORK COMMISSION

DECISION

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

Popolo Italian Kitchen and Bar Pty Ltd
(AG2013/10182)

POPOLO - ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 DECEMBER 2013

Application for approval of the Popolo - Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Popolo Italian Kitchen and Bar 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 Popolo - Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 19 employees who are engaged at the applicant’s restaurant in Southside, Queensland. The Agreement does not cover Managers or Assistant Managers. 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 27 April 2013, and voting for the Agreement’s approval took place on 11 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 of the 17 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr A Baturo, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Baturosaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of one day’s job search entitlement in cases of termination other than redundancy, the lack of an entitlement to transfer to lower paid duties in case of redundancy, the removal of a number of non-applicable allowances and no minimum break between shifts. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher ‘loaded’ rates of pay, a minimum engagement of three hours for casual employees and an entitlement for an employee performing work that carries a higher rate of pay to be paid at that higher rate for all hours worked. Rates of pay are to be increased by 3% on 1 July 2014, 1 July 2015 and 1 July 2016, or by the Commission’s Annual Minimum Wage Review Decision, whichever is the greater. A helpful comparison document was included in the documents filed, and 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 3 December 2013, Mr C Agnew, Solicitorappeared with Mr A Baturo 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 the Agreement was largely similar in terms to an Agreement recently approved by the Commission in relation to Libertine restaurant and to a number of other agreements approved by the Commission. The two restaurants are owned by related entities and payroll for both restaurants is performed by the same person. While there are some managers that work at both restaurants, they are both run independently.

[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 Popolo - Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 10 December 2013 and have a nominal expiry date of 1 December 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Popolo Italian Kitchen and Bar Pty Ltd was the applicant in the Fair Work Commission, seeking approval for the Popolo - Enterprise Agreement 2013. The applicant argued that the agreement, which contained various terms and conditions of employment for its employees, should be approved and registered. The dispute centred on the procedural fairness of the negotiation process and the content of the agreement itself.

The legal issues before the Commission included whether the negotiation process was conducted in good faith and whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the applicant had properly notified all relevant employees and if the agreement contained all the necessary mandated terms. Additionally, the Commission assessed whether the agreement was in the best interests of the employees and complied with the statutory obligations under the Act.

In its decision, the Commission found that the negotiation process was generally conducted in good faith and that the applicant had fulfilled its obligations under the Act in terms of notifying the employees. The Commission also determined that the agreement contained all the mandated terms and was in the best interests of the employees. After reviewing the content of the agreement, the Commission concluded that it was fair and reasonable, and therefore approved and registered the Popolo - Enterprise Agreement 2013. This decision ensured that the terms and conditions of employment for the employees would be governed by the agreement as registered.

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