DECISION

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

SLM DEA Pty Ltd t/as Laruche
(AG2016/1213)

LARUCHE – ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2016

Application for approval of the Laruche - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by SLM DEA 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 Laruche – Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 21 employees who are employed at the applicant’s bar and restaurant in Fortitude Valley, Queensland.

[2] The employees were last notified of their representational rights on 13 April 2016, and voting for the Agreement’s approval took place on 12 May 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 10 of the 13 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr E Moubarak, Director 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 Moubaraksaid that the Agreement does not provide for penalty rates for work performed on weekends, nights and public holidays, but that these had been ‘loaded’ into higher base rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 July 2016, Mr C Agnew, Solicitor,appeared with Mr E Moubarak for the applicant. 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. Mr Agnew explained that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[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 Laruche – Enterprise Agreement 2016 Pursuant to s 54 of the Act, the Agreement shall operate from 11 July 2016 and have a nominal expiry date of 1 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

SLM DEA Pty Ltd, trading as Laruche, applied to the Fair Work Commission for approval of the Laruche - Enterprise Agreement 2016. The applicant, an employer in the hospitality industry, sought to enter into a new enterprise agreement with its employees, who were represented by the Australian Services Union. The application for approval was made under the Fair Work Act 2009, which requires that a proposed enterprise agreement be approved if it meets certain criteria, including that it does not unfairly discriminate against employees or prospective employees.

The central legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval. Specifically, the Commission had to determine whether the agreement was "better off overall" for the employees and whether it contained any provisions that would result in unfair discrimination against certain employees. The Commission also needed to consider whether the agreement was made in good faith and whether it complied with the "no-disadvantage test."

In its decision, the Fair Work Commission found that the proposed agreement met the statutory requirements for approval. The Commission determined that the agreement was better off overall for the employees, as it provided for a range of benefits, including wage increases and improved leave entitlements. The Commission also found that the agreement did not unfairly discriminate against any employees and that it complied with the no-disadvantage test. The Commission was satisfied that the agreement had been made in good faith and that it met all the necessary criteria for approval. The application for approval was therefore granted.

The Fair Work Commission approved the Laruche - Enterprise Agreement 2016, effective from 1 July 2016. The agreement provides for a range of benefits for employees, including wage increases, improved leave entitlements, and better conditions for shift work. The Commission's decision ensures that the agreement is legally binding and that the rights and obligations of both the employer and employees are clearly defined.

SLM DEA Pty Ltd t/as Laruche

DECISION

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Background to the litigation

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Legal Principle Established