Rathna Foods Pty Ltd t/as Oporto Galleries Victoria

[2013] FWCA 2211

[2013] FWCA 2211

FAIR WORK COMMISSION

DECISION

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

Rathna Foods Pty Ltd t/as Oporto Galleries Victoria
(AG2013/771)

RATHNA FOODS PTY LTD - ENTERPRISE AGREEMENT 2012

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MAY 2013

Application for approval of the Rathna Foods Pty Ltd - Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Rathna Foods 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 Rathna Foods Pty Ltd - Enterprise Agreement 2012 (the ‘Agreement’). The Agreement is to cover 10 employees who are employed at the applicant’s fast food franchise (commonly known as ‘Oporto’) in the Sydney CBD. It is in identical, or substantially identical, terms to four other agreements approved by me and other members of the Commission.

[2] The employees were last notified of their representational rights on 27 July 2012, and voting for the Agreement’s approval took place on 16 January 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by a returning officer nominated by employees, 8 of the 9 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 April 2013. Mr C Agnew, Solicitor for the applicant, informed the Commission that the application was filed out of time due to representative error. He sought an extension of time for filing the application and submitted that the employees of the applicant had been paid according to the rates in the Agreement since the ballot for its approval. There would be no prejudice to those employees if the Agreement otherwise meets the BOOT. In light of these submissions, I find that it would be fair in all the circumstances to grant an extension of time for filing the application to 2 April 2013, pursuant to s 185(3)(b) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Nagam, Director,identified the Fast Food Industry Award 2010 [MA000003] and the Shop Employees (State) Award [AN120499] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Nagamsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the Awards, including the removal of a job search entitlement in the event of redundancy, a minimum engagement of two hours and the lack of provision for annual leave loading, which was said to be ‘loaded’ into the Agreement rates of pay. However, the Agreement also provides for terms and conditions more beneficial than, or in excess of, those under the Award, including higher rates of pay and an increased period of notice where employees are 45 years of age and older in the event of termination of employment. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 9 April 2013, Mr C 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 fast food restaurant is located in a food court in Sydney’s CBD and that, accordingly, its hours of operation are focused on weekday trade between 8:30am and 6:30pm. He provided the Commission with some comparative calculations which were said to show that the rates of pay under the Agreement met the BOOT. In response to my concerns that the small differential between the rates of pay under the Award and those under the Agreement may not cover the loss of annual leave loading, Mr Agnew said that the applicant would provide an undertaking to increase the rates of pay by 1.5% (being the effective value of the annual loading in percentage terms). 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 Rathna Foods Pty Ltd - Enterprise Agreement 2012. Pursuant to s 54 of the Act, the Agreement shall operate from 16 April 2013 and have a nominal expiry date of 1 January 2014.

DEPUTY PRESIDENT

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