Sahib Investments Australia Pty Ltd t/as Toscani's Riverlinks Cafe Restaurant

[2015] FWCA 7356

[2015] FWCA 7356

FAIR WORK COMMISSION

DECISION

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

Sahib Investments Australia Pty Ltd t/as Toscani's Riverlinks Cafe Restaurant
(AG2015/5790)

SAHIB INVESTMENTS AUSTRALIA PTY LTD ENTERPRISE BARGAINING AGREEMENT 2015 - 2019

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 26 OCTOBER 2015

Application for approval of the Sahib Investments Australia Pty Ltd Enterprise Bargaining Agreement 2015 - 2019.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sahib Investments Australia Pty Ltd t/as Toscani’s Riverlinks Cafe Restaurant (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sahib Investments Australia Pty Ltd Enterprise Bargaining Agreement 2015 - 2019 (the ‘Agreement’). The Agreement was negotiated with Ms R Bishop, a nominated Employee Bargaining Representative (EBR) and is to cover 12 employees who are employed at the applicant’s restaurant in North Ipswich, Queensland.

[2] The employees were last notified of their representational rights on 11 August 2015 and voting for the Agreement’s approval took place on 24 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by show of hands, all 12 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 October 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Chandi and Ms H Chandi, Directors and Owners, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). It wassaid that the Agreement does not provide for any terms and conditions that are more or less beneficial than the Award. However, this is not strictly correct, as the Agreement does not provide for penalty rates for work performed on weekends or annual leave loading and these have been ‘loaded’ into base rates of pay 7% higher than those under the Award. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 14 respectively, and a disputes resolution procedure at clause 15 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 19 October 2015, Mr K Law appeared with Ms H Chandi for the applicant and Ms R Bishop appeared in her capacity as EBR. Mr Law 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. Mr Law confirmed that, despite a provision allowing the employer to review increase rates of pay as deemed appropriate, rates of pay would be increased in accordance with the Commission’s Minimum Wage Review Decision pursuant to cl 20 of the Agreement. Ms Bishop confirmed that she and the employees she represented were happy with the Agreement.

[5] Having heard the parties’ 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 Sahib Investments Australia Pty Ltd Enterprise Bargaining Agreement 2015 – 2019. Pursuant to s 54 of the Act, the Agreement shall operate from 26 October 2015 and have a nominal expiry date of 25 October 2019.

DEPUTY PRESIDENT

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