Street Greek Broadway Pty Ltd T/A Zeus Broadway

[2017] FWCA 3074

[2017] FWCA 3074

FAIR WORK COMMISSION

DECISION

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

Street Greek Broadway Pty Ltd T/A Zeus Broadway
(AG2017/1563)

STREET GREEK BROADWAY PTY LTD - ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JUNE 2017

Application for approval of the Street Greek Broadway Pty Ltd - Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal on behalf of Street Greek Broadway 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 Street Greek Broadway Pty Ltd – Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover all employees employed at the applicant’s premises in Broadway, NSW. 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.

[1] The employees were last notified of their representational rights on 20 March 2017, and voting for the Agreement’s approval took place on 11 April 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 May 2017. While I note that this outside the statutory time limit prescribed by s 185(3)(a), considering the relatively short delay in lodging the application and the fact that the employees are already being paid in accordance with the Agreement, I consider it fair, in all the circumstances, to extend that period to 4 May 2017.

[2] In the Employer’s Declaration in support of the application (Form F17) Mr M Wood, Director identified the Restaurant Industry Award [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Wood said that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of pay (between 11% to 13% higher). Mr Wood also said that there were a number of other provisions which had been incorporated into the ‘loaded’ rate of pay, including no meal or split shift allowances and reduced overtime penalties.

[3] At a hearing of the application on 1 June 2017, Mr C Agnew, Solicitorappeared for the applicant with Mr M Timbs, Franchisee. 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 Timbsdescribed the opening hours of the restaurant as well as the staff rostering arrangements. The restaurant is open from Monday to Sunday between 10am to 9.30pm. Employees are rostered in such as a way to ensure there is an even spread of hours during the week. On balance, 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] 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 Street Greek Broadway Pty Ltd – Enterprise Agreement 2017.Pursuant to s 54 of the Act, the Agreement shall operate from 8 June 2017 and have a nominal expiry date 1 April 2021.

DEPUTY PRESIDENT

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