St Mary's Hogs Pty Ltd t/as Hogs Breath Cafe St Mary's

[2014] FWCA 662

[2014] FWCA 662

FAIR WORK COMMISSION

DECISION

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

St Mary's Hogs Pty Ltd t/as Hogs Breath Cafe St Mary's
(AG2014/47)

ST MARY'S HOGS PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 25 FEBRUARY 2014

Application for approval of the St Mary's Hogs Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by St Mary’s Hogs Pty Ltd t/as Hogs Breath Cafe St Mary’s (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the St Mary’s Hogs Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 37 employees who are employed at the applicant’s restaurant in St Mary’s, New South Wales. It does not cover Restaurant Managers. 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 31 October 2013, and voting for the Agreement’s approval took place on 7 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 14 of the 25 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 January 2014. While the application was lodged outside the statutory time limit set out in s 185(3)(a), I consider it fair in all the circumstances to extend the period for the application to be made to 13 January 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Ahmed, 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 Ahmedsaid that the Agreement provides for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of weekend penalty rates and a number of allowances. However, these have 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 22 January 2014, Mr C Agnew, Solicitorappeared with Mr S Ahmed 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 majority of the restaurant’s business is done on Saturday and Friday evenings. The calculations undertaken in comparing the loaded rates of pay with the rates of pay and penalty rates under the Awards had been performed with a typical Hog’s Breath Cafe roster in mind. Mr Agnew also offered to provide undertakings bringing forward the first increase of 3% in rates of pay to 1 July 2014. The Agreement also provides for further increases of 3% on 1 July 2015 and 1 July 2016. 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’.

[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 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the St Mary’s Hogs Pty Ltd - Enterprise Agreement 2013-2017. Pursuant to s 54 of the Act, the Agreement shall operate from 29 January 2014 and have a nominal expiry date of 1 June 2017.

DEPUTY PRESIDENT

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