Staff Services Melbourne Pty Ltd

[2017] FWCA 378

[2017] FWCA 378

FAIR WORK COMMISSION

DECISION

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

Staff Services Melbourne Pty Ltd
(AG2016/7753)

STAFF SERVICES MELBOURNE PTY LTD AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 19 JANUARY 2017

Staff Services Melbourne Pty Ltd Agreement 2016.

[1] This is an application, pursuant to s185 of the Fair Work Act 2009 (the ‘Act’), filed by Staff Services Melbourne 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 Staff Services Melbourne Pty Ltd Agreement 2016 (the ‘Agreement’). The Agreement is to cover all employees of the applicant (currently 5) who are engaged at the applicant’s café in Southbank, Brisbane. 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 17 November 2016, and voting for the Agreement’s approval took place on 12 December 2016. The time limits under s181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all five employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 December 2016, thereby satisfying s185(3) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Mr G Mantle, Director of the applicant, identified the Restaurant Industry Award 2010 [MA000119] and the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’).

[4] At a hearing of the application on 13 January 2017, Mr C Mossman appeared with permission on behalf of the applicant, together with Ms K Jacklin (also a solicitor), Mr G Mantle and Ms S Lee who undertakes payroll duties. Mr Mossman 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] The base wage rates in cl 3.2.1 of the Agreement are between 5% and 11.5% higher than those in the reference instruments. At the hearing, Mr Mossman and Mr Mantle described the operating hours of the café. Mr Mantle stated trading hours are between 7am-4pm Monday to Friday and it could not be envisaged that it would open during weekends. In light of this information, I am satisfied that the Agreement passes the BOOT.

[6] The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a dispute resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[7] Having heard the applicant’s submissions and upon reviewing the terms of the pre-approval 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 they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the Staff Services Melbourne Pty Ltd Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 20 January 2017. It shall have a nominal expiry date of 13 January 2021.

DEPUTY PRESIDENT

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