Skylette Pty Ltd

[2014] FWCA 7341

[2014] FWCA 7341

FAIR WORK COMMISSION

DECISION

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

Skylette Pty Ltd
(AG2014/9227)

SKYLETTE PTY LTD ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 17 OCTOBER 2014

Application for approval of the Skylette Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Skylette 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 Skylette Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 6 employees who are employed at the applicant’s restaurant, known as Black Cow Dessert Bar in Canley Heights, New South Wales.

[2] The employees were last notified of their representational rights on 16 June 2014, and voting for the Agreement’s approval took place on 23 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Basil,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 Basilsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including no provision for annual leave loading, the removal of a special clothing allowance and a higher duties allowance to be paid after an employee works in the higher position for 3, rather than 2 hours. However, the Agreement provides for terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, a 50% discount on food and non-alcoholic drinks and small beverage and store entitlements where an employee works for more than 5 hours. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 7 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 15 October 2014, Mr J Sanders of MST Lawyersappeared with Mr S Basil for the applicant. Mr Sanders offered undertakings increasing the minimum rates of pay in order to take into account the increase flowing from the Commission’s 2014 Minimum Wage Review decision and a meal entitlement for employees who work overtime in certain circumstances. Mr Sanders outlined the main features of the Agreement as amended by the undertaking 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 Sanders explained that the Agreement set out two wage schedules, one providing for a flat ‘loaded’ base rate of pay for all hours work, the other providing for penalty rates similar to those under the Award, to be selected at the discretion of the employer at the commencement of employment, although this arrangement can be changed by agreement between the employer and employee. Mr Sanders submitted that no employee would be worse off than they would be otherwise under the Modern Award. I am satisfied that the Agreement passes the BOOT. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190, 191 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Skylette Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 22 October 2014 and have a nominal expiry date of 21 October 2018.

DEPUTY PRESIDENT

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