Springhog Pty Ltd t/as Hogs Breath Springfield

[2014] FWCA 2724

[2014] FWCA 2724

FAIR WORK COMMISSION

DECISION

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

Springhog Pty Ltd t/as Hogs Breath Springfield
(AG2014/858)

SPRINGHOG PTY LTD - ENTERPRISE AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 29 APRIL 2014

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

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Springhog Pty Ltd t/as Hogs Breath Springfield (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Springhog Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 46 employees (except for restaurant managers) who are employed at the applicant’s restaurant commonly known as, Hogs Breath, in Springfield, Queensland. 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 6 November 2013, and voting for the Agreement’s approval took place on 13 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the 17 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr L Gooley, Director identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry - Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 [AN140144] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Gooleysaid that the Agreement does contain some conditions that are less beneficial than those under the reference instruments, including shorter minimum engagements for part time employees, the removal of a number of non-applicable allowances and the removal of penalty rates for work performed on weekends, public holidays and at other unsociable times. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including rates of pay which are between 7-9% higher than those under the reference instruments. Rates of pay are to be increased by 3% on 1 July 2014, 1 July 2015 and 1 July 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 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 24 May 2014, Mr C Agnew, Solicitor,appeared with Mr L Gooley 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. He explained that the restaurant had opened just prior to the Christmas season in 2013. Mr Gooley observed that all of the employees of the restaurant are part time.

[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 Springhog Pty Ltd - Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 1 May 2014 and have a nominal expiry date of 1 May 2017.

DEPUTY PRESIDENT

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