Sushi Point Pty Ltd t/as Sushi Point

[2014] FWCA 6376

[2014] FWCA 6376

FAIR WORK COMMISSION

DECISION

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

Sushi Point Pty Ltd t/as Sushi Point
(AG2014/7128)

SUSHI POINT PTY LTD ENTERPRISE BARGAINING AGREEMENT 2014 - 2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 SEPTEMBER 2014

Application for approval of the Sushi Point Pty Ltd Enterprise Bargaining Agreement 2014 - 2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sushi Point Pty Ltd t/as Sushi Point (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sushi Point Pty Ltd Enterprise Bargaining Agreement 2014 - 2018 (the ‘Agreement’). The Agreement was negotiated with 3 non-Union Employee Bargaining Representatives (EBRs) and is to cover 32 employees who are employed at the applicant’s restaurants in Victoria Point, Tingalpa and Cleveland, Queensland.

[2] The employees were last notified of their representational rights on 28 June 2014, and voting for the Agreement’s approval took place on 12 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 32 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 August 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms M Mathias, Director/Owner 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’). Ms Mathiassaid that the Agreement does not provide for any terms and conditions that are more or less beneficial than those under the reference instruments. However, this is not strictly true, as the Agreement provides for higher rates of pay, but no penalty rates for work performed on weekends. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 13A and 14 respectively, and a disputes resolution procedure at clause 15 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 September 2014, Mr K Law appeared with Ms M Mathias for the applicant and Ms L Giblin appeared in her capacity as EBR. Mr Law 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. In response to some concerns raised by the Commission, Mr Law offered undertakings that so that a duplicate clause referencing individual flexibility be deleted, rates of pay are adjusted so that rates of pay are 7% higher than those under the reference instruments and a blanket restriction on taking leave in December and January removed. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’. Ms Giblin indicated that she and the employees whom she represented were happy with the Agreement.

[5] Having heard the parties’ 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, 192 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Sushi Point Pty Ltd Enterprise Bargaining Agreement 2014 - 2018. Pursuant to s 54 of the Act, the Agreement shall operate from 18 September 2014 and have a nominal expiry date of 17 September 2018.

DEPUTY PRESIDENT

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