S.I Hams & J Lovett t/as The Mexican - Port Douglas

[2016] FWCA 8379

[2016] FWCA 8379

FAIR WORK COMMISSION

DECISION

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

S.I Hams & J Lovett t/as The Mexican - Port Douglas
(AG2016/6440)

THE MEXICAN - PORT DOUGLAS ENTERPRISE BARGAINING AGREEEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 NOVEMBER 2016

Application for approval of The Mexican - Port Douglas Enterprise Bargaining Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by S.I Hams & J Lovett t/as The Mexican – Port Douglas (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Mexican - Port Douglas Enterprise Bargaining Agreement 2016 (the ‘Agreement’). The Agreement is to cover 10 employees who are employed at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 14 July 2016 and voting for the Agreement’s approval took place on 5 October 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 10 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 October 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr J Lovett identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Lovett said that the Agreement does not provide for penalty rates for work performed on weekends and public holidays. However, these have been ‘loaded’ into higher base rates of pay. During a hearing for the application, I raised the potential issue in relation to the BOOT as to whether the ‘loaded rate’ could mean some employees would be worse off if they were to work solely on weekends. I also raised other issues including in respect to the annualised salaries at cl 3.5, the rostering provisions for part-time employees as well as cl 4.1.6 – Voluntary Additional Hours. The applicant offered to provide an undertaking in regards to each of these issues in order to alleviate any potential issues with the Agreement passing the BOOT. A copy of the undertaking was provided to my chambers on 14 November 2016. 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’. Given this undertaking, I am satisfied that the Agreement passes the BOOT.

[4] At a hearing of the application on 26 October 2016, Ms T Fabiani of HR Dynamicsappeared for the applicant. Ms Fabiani 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 explained that the base rates of pay are 12.5% higher than those under the Award and that rates of pay are to be increased by 2.5% on 1 November 2017, 1 November 2018 and 1 November 2019.

[5] 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 by the Commission.

[6] 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 Mexican - Port Douglas Enterprise Bargaining Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 30 November 2016 and have a nominal expiry date of 31 October 2020.

DEPUTY PRESIDENT

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