Sharrp Pty Ltd t/as Coffee Club Shellharbour

[2014] FWCA 2866

[2014] FWCA 2866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Sharrp Pty Ltd t/as Coffee Club Shellharbour
(AG2014/929)

SHARRP PTY LTD - ENTERPRISE AGREEMENT 2014-2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MAY 2014

Application for approval of the Sharrp Pty Ltd - Enterprise Agreement 2014-2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal 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 Sharrp Pty Ltd - Enterprise Agreement 2014-2018 (the ‘Agreement’). The Agreement is to cover 10 employees, other than Restaurant Managers, who are enagaged at the applicant’s restaurant in Shellharbour, New South Wales. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 January 2014, and voting for the Agreement’s approval took place 28 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 10 employees voted to approve the Agreement. The application for approval of the Agreement was filed outside of the 14 days required under s 186(3)(a). However, in the circumstances I consider it fair to extend that period to 22 April 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P O’Neill, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Restaurants, &c., Employees (State) Award [AN120468]as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr O’Neillsaid that the Agreement does contain some terms and conditions which are less beneficial than those under the reference instruments, including the removal of some penalties and allowances, such as meal allowance, split shift allowance, tool allowance, special clothing allowance and some non applicable allowances. However, the Agreement also provides for a number of terms and conditions which are more beneficial, including higher rates of pay in compensation for the removal of allowances, including an increase of $5.00 per hour on public holidays. Rates of pay are to be adjusted by either $0.25 per hour, or in accordance with the Commission’s Minimum Wage Review decisions, whichever is higher, and is to be applied from 1 July each year during the Agreement’s nominal term. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and clause 7.3 respectively, and a disputes resolution procedure at clause 2.4 provides for arbitration by the Commission.

[4] At a hearing of the application on 1 May 2014, Mr C Agnew, Solicitor appeared for the employer and Mr P O’Neill. Mr Agnew 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.

[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 Sharrp Pty Ltd - Enterprise Agreement 2014-2018. Pursuant to s 54 of the Act, the Agreement shall operate from 8 May 2014 and have a nominal expiry date of 1 March 2018.

DEPUTY PRESIDENT

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