Schnitz QV Pty Ltd and others

[2015] FWCA 194

[2015] FWCA 194

FAIR WORK COMMISSION

DECISION

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

Schnitz QV Pty Ltd and others
(AG2014/10952)

MQSR ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JANUARY 2015

Application for approval of the MQSR Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the following entities (the ‘applicants’):

• A.M.J Investment Group Pty Ltd;



• Beladome Pty Ltd;



• D&K Pacific Trading Pty Ltd;



• Gnowmadawot Pty Ltd;



• M.S.Q Investment Group Pty Ltd;



• OHL Enterprises Pty Ltd;



• Schnitz QV Pty Ltd; and



• Siegerteam Pty Ltd.

[2] I note that the applicants were the subject of a single interest employer authorisation made by the Commission, as presently constituted, on 7 November 2014; See: Schnitz QV Pty Ltd and others [2014] FWC 7806.

[3] The application seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the MQSR Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 188 employees who are employed at the applicants’ franchise restaurants, commonly known as Schnitz.

[4] The employees were last notified of their representational rights on 14 November 2014, and voting for the Agreement’s approval took place between 10 and 12 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In votes conducted by each individual applicant, 88 of the 103 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 December 2014, thereby satisfying s 185(3) of the Act.

[5] In the Employer’s Declaration in support of the application (Form F17) Mr D de Vries, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998 [AP787213] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr de Vriessaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including lower junior rates of pay for 19 and 20 year olds, the removal of higher duties entitlements and the omission of some allowances. However the Agreement provides for higher base rates of pay, into which annual leave loading is also amortized. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 30 and 32 respectively, and a disputes resolution procedure at clause 31 provides for mediation and consent arbitration by the Commission.

[6] At a hearing of the application on 7 January 2015, Mr C Ni appeared with Mr D de Vries for the applicant. Mr Ni 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 Agreement set out three wage schedules in the Agreement, each providing for different penalty loading arrangements, to be selected at the discretion of the employer. Schedule A provides for a high flat rate across all hours worked, Schedule B provides for a flat rate slightly lower than that of Schedule A across Monday to Saturday, with time and a half for work performed on Sundays and Schedule C provides penalty rates that mirror those of the modern award. Mr Ni said that calculations had been made based on rostering models provided by the employers and submitted that in all cases, employees would be better off overall. Rates of pay are to be increased by 2.5% on 1 July 2015, 1 July 2016 and 1 July 2017.

[7] 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 MQSR Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 14 January 2015 and have a nominal expiry date of 13 January 2019.

DEPUTY PRESIDENT

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