DECISION

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

Serve Hospitality Pty Ltd T/A Serve Hospitality
(AG2016/3171)

SERVE ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 14 JUNE 2016

Application for approval of the Serve Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Serve Hospitality 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 Serve Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover four labour hire employees who are engaged in the provision of hospitality and facility management services.

[2] The employees were last notified of their representational rights on 8 April 2016, and voting for the Agreement’s approval took place on 2 May 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by show of hands, all four of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Malovic, Housekeeping General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Malovicsaid that while the Agreement provides for less beneficial conditions in relation to rostering and working hours, the Agreement provides for base rates of pay that are to be maintained at 2% higher than those under the Award. I am satisfied that the Agreement passes the BOOT.

[4] The applicant also offered undertakings to amend the mandatory flexibility term at cl 2.2, the consultation term at cl 2.8 and the nominal expiry date at cl 1.1, so that they are in conformity with the Act. 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’. A disputes resolution procedure at clause 2.6 provides for conciliation and arbitration by the Commission.

[5] Having reviewed 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 Serve Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 21 June 2016 and have a nominal expiry date of 14 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Serve Hospitality Pty Ltd, trading as Serve Hospitality, an application was brought before the Fair Work Commission to seek approval of the Serve Enterprise Agreement 2016. This case involved the establishment of terms and conditions of employment for the workers within the enterprise. The dispute was primarily about the procedural and substantive fairness of the agreement as proposed by the employer.

The legal issues before the court included whether the agreement had been made in accordance with the relevant legislative requirements and whether the agreement met the criteria for being a "better off overall test" (BOOT) under the Fair Work Act 2009. The court had to determine if the agreement provided a safety net for employees, maintained essential protections, and ensured a fair and reasonable outcome for all parties involved.

The Fair Work Commission found that the application for approval was made in a procedurally sound manner. The commission also considered that the proposed agreement provided for a fair and reasonable outcome for the employees, meeting the BOOT criteria. It was held that the agreement contained appropriate terms and conditions that safeguarded the employees' rights while allowing for efficient business operations. The commission was satisfied that the agreement did not disadvantage employees and was in compliance with the Fair Work Act 2009.

The Fair Work Commission approved the Serve Enterprise Agreement 2016, thus resolving the dispute. The approval was based on the finding that the agreement was made fairly, met the legislative requirements, and provided for a balanced and fair outcome for both the employer and the employees.

Serve Hospitality Pty Ltd T/A Serve Hospitality

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established