Raschella Loop Pty Ltd ITF the Raschella Loop Unit Trust t/as Belmondo Ristorante

[2013] FWCA 5237

FAIR WORK COMMISSION

DECISION

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

Raschella Loop Pty Ltd ITF the Raschella Loop Unit Trust t/as Belmondo Ristorante
(AG2013/1907)

RASCHELLA LOOP ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 JULY 2013

Application for approval of the Raschella Loop Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Raschella Loop Pty Ltd ITF the Raschella Loop Unit Trust t/as Belmondo Ristorante (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Raschella Loop Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Mr N O’Keeffe. The Agreement is to cover 6 employees who are employed at the applicant’s restaurant, Belmondo Ristorante, in Holden Hill, South Australia.

[2] The employees were last notified of their representational rights on 30 May 2013, and voting for the Agreement’s approval took place between 27 June - 2 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 4 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Raschella, 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 Raschellasaid that the Agreement does not provide for overtime and penalty rates. However, he said that employees are paid higher base rates of pay and that shifts would be distributed to ensure that employees remained better off overall. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 22 July 2013, Mr C Cini of Mediation and Employment Relations Services,appeared for the applicant. Mr Cini 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 for me as to adjustments to base rates of pay under clause 23 of the Agreement, Mr Cini offered undertakings clarifying that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage review Decisions. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 187,188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Raschella Loop Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 29 July 2013 and have a nominal expiry date of 28 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Raschella Loop Pty Ltd, trading as Belmondo Ristorante, applied to the Fair Work Commission for approval of the Raschella Loop Enterprise Agreement 2013. The dispute involved the terms and conditions of employment for the restaurant's staff, and the need for these terms to be formally approved by the Commission. The legal issues before the Commission were whether the agreement met the criteria set out in the Fair Work Act 2009, specifically regarding the process through which the agreement was made and the fairness of the terms.

The Commission examined whether the agreement was made in good faith and whether the process for its creation was appropriate and transparent. The employer argued that the agreement was made in good faith and that the process was fair, while the employee representative contended that there were procedural flaws and that the terms did not adequately protect employee interests. The Commission found that the agreement was indeed made in good faith and that the process was appropriate. The terms of the agreement were deemed to be fair, taking into account the specific circumstances of the restaurant industry and the need for flexibility in staffing arrangements.

Consequently, the Fair Work Commission approved the Raschella Loop Enterprise Agreement 2013. The decision underscored the importance of good faith in the negotiation process and the necessity for flexibility in the application of enterprise agreements to suit the unique demands of different industries. The approval of the agreement ensures that the terms and conditions of employment are legally recognised and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established