Rayson Management Pty Ltd t/as Skeetas Restaurant

[2013] FWCA 6462

[2013] FWCA 6462

FAIR WORK COMMISSION

DECISION

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

Rayson Management Pty Ltd t/as Skeetas Restaurant
(AG2013/2455)

SKEETAS RESTAURANT ENTERPRISE AGREEMENT

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 3 SEPTEMBER 2013

Application for approval of the Skeetas Restaurant Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Rayson Management Pty Ltd t/as Skeetas Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Skeetas Restaurant Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 45 employees who are engaged at the applicant’s restaurant in Geraldton, Western Australia.

[2] The employees were last notified of their representational rights on 6 July 2013, and voting for the Agreement’s approval took place between 9 - 10 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 10 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms G Howe, HR Officer, identified the Restaurant Industry Award 2010 [MA000119], the Restaurant, Tearoom and Catering Workers’ Award [AN160276] and the Clerks (Commercial, Social and Professional Services) Award No. 14 of 1972 [AN160066] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Howesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including a lack of provision for penalty rates for Saturdays, Sundays and Public Holidays and the removal of a split shift allowance. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including flat base rates of pay that are 10% above those under the Modern Award, a casual loading of 35%, the provision of a free meal and beverage where an employee works over 6 hours and a weekend incentive payment for permanent employees. Personal leave, annual leave and compassionate leave are calculated at the flat hourly rate of pay, rather than at the base rate of pay. 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 9 and 11 respectively, and a disputes resolution procedure at clause 10 provides for conciliation and arbitration by the Western Australian Industrial Relations Commission (WAIRC).

[4] At a hearing of the application on 27 August 2013, Ms G Howe,appeared for the applicant. Ms Howe 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. She said that because the applicant was familiar with the processes of the WAIRC, the Agreement’s disputes resolution clause referred to that Commission. She also explained that the purpose of cl 20.1(c) was to act in a similar fashion to a higher duties allowance clause.

[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 Skeetas Restaurant Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 3 September 2013 and have a nominal expiry date of 2 September 2017.

DEPUTY PRESIDENT

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