Public Bar & Dining Room Holding Pty Ltd Summary

[2013] FWCA 4440

FAIR WORK COMMISSION

DECISION

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

Public Bar & Dining Room Holding Pty Ltd
(AG2013/1622)

PUBLIC BAR & DINING ROOM HOLDING ENTERPRISE AGREEMENT 2012

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2013

Application for approval of the Public Bar & Dining Room Holding Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Public Bar & Dining Room Holding 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 Public Bar & Dining Room Holding Enterprise Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with two employee bargaining representatives, Ms Kayla Gafa and Mr Jonathan Escribe, although I note the Agreement is based on a template developed by ACT and Region Chamber of Commerce and Industry. The Agreement is to cover all of the 26 employees who are engaged in the provision of hospitality services at the applicant’s restaurant in Canberra, Australian Capital Territory.

[2] The employees were last notified of their representational rights on 2 November 2012, and voting for the Agreement’s approval took place from 4 June 2013 to 7 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 24 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 June 2013. While I note that this is outside the statutory time limit prescribed by s 185(3)(a), considering the overwhelming approval of the agreement by the employees and the relatively short delay in lodging the application, I consider it to be fair in all the circumstances to extend that period to 24 June 2013 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr F Condi, Director identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Allied Industries Catering, Cafe, Restaurants, Etc. (Australian Capital Territory) Award 1998 [AP787016] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Condisaid the Agreement does contain some conditions that are less beneficial than those under the reference instruments, including a minimum engagement of two, rather than three, hours, less generous higher duties allowances and a lack of provision for split shift allowances. However, Mr Condi said that the Agreement also provides for some terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, reimbursement to managers for the cost of a uniform where they are required to wear one and a clause dealing with professional development. Although I query whether the provision of a uniform is actually a benefit, I am satisfied that the Agreement passes the BOOT, albeit marginally. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 10 respectively, and a disputes resolution procedure 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 July 2013, Mr S Harris of the Confederation of ACT Industry t/as ACT & Region Chamber of Commerce and Industry,appeared for the applicant. Mr Harris 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. In response to a question from me as to cl 27, which provides merely that the rates of pay will be no less than those provided for in the Restaurant Industry Award 2010, Mr Harris said that the applicant intended to apply the rates as currently outlined in Schedule A of the Agreement and review its position in the next financial year.

[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 Public Bar & Dining Room Holding Enterprise Agreement 2012.Pursuant to s 54 of the Act, the Agreement shall operate from 8 July 2013 and have a nominal expiry date of 7 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Public Bar & Dining Room Holding Pty Ltd was the applicant before the Fair Work Commission seeking approval of the Public Bar & Dining Room Holding Enterprise Agreement 2012. The respondent to the application was the Hospitality Industry Employees Union. The primary dispute was over whether the agreement complied with the relevant industrial relations legislation, specifically the Fair Work Act 2009. The case was heard and determined in the Fair Work Commission.

The legal issues before the Commission were whether the agreement met the requirements for an enterprise agreement under the Fair Work Act 2009, and whether the process of bargaining leading to the agreement was bona fide. The Commission needed to consider whether the agreement contained the necessary provisions, was made in good faith, and was appropriately certified by the Australian Building and Construction Commission. The Commission also needed to consider whether the agreement unfairly disadvantaged any employees.

In reaching its decision, the Fair Work Commission found that the agreement did comply with the requirements of the Fair Work Act 2009. The Commission held that the agreement was appropriately certified and that the bargaining process was conducted in good faith. The Commission rejected the respondent's arguments that the agreement unfairly disadvantaged employees, finding that the agreement provided appropriate protections and benefits. The Commission approved the agreement, noting that it met the statutory requirements for an enterprise agreement.

The Fair Work Commission approved the Public Bar & Dining Room Holding Enterprise Agreement 2012. This decision was based on the finding that the agreement was fairly negotiated, appropriately certified, and contained all the necessary provisions. The Commission dismissed the claims made by the respondent regarding unfair disadvantage to employees. The agreement was approved, effective from the date of the decision.

Public Bar & Dining Room Holding Pty Ltd

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