Sushi Port Douglas Pty Ltd t/as Sushi Port Douglas

[2014] FWCA 2998

FAIR WORK COMMISSION

DECISION

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

Sushi Port Douglas Pty Ltd t/as Sushi Port Douglas
(AG2014/5812)

SUSHI PORT DOUGLAS PTY LTD ENTERPRISE BARGAINING AGREEMENT 2014

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 MAY 2014

Application for approval of the Sushi Port Douglas Pty Ltd Enterprise Bargaining Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sushi Port Douglas Pty Lt t/as Sushi Port Douglas (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sushi Port Douglas Pty Ltd Enterprise Bargaining Agreement 2014 (the ‘Agreement’). The Agreement is to cover 9 employees who are engaged at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 6 February 2014, and voting for the Agreement’s approval took place on 15 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. It was said that all 9 of the employees had agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Davies identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Davies said that the Agreement provided for some terms and conditions which were less beneficial than those under the reference instrument, including the removal or penalty rates for work performed on weekends and public holidays. However, these had been loaded into significantly higher rates of pay. Rates of pay are to be increased by 2.5% 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 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 7 May 2014, Ms P Kitto appeared with Mr S Davies for the applicant. Ms Kitto 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. She explained that the loaded rates of pay were 12.5% higher than those under the reference instrument and that the roster was rotated to ensure that the employees would be required to work twenty Saturday and Sunday shifts per year. The applicant had performed calculations based on these rosters which demonstrated that the employees would be better off overall. Mr Davies said that the restaurant was a new business in Port Douglas that had been operating since December 2013.

[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 Sushi Port Douglas Pty Ltd Enterprise Bargaining Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 14 May 2014 and have a nominal expiry date of 30 April 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Sushi Port Douglas Pty Ltd, trading as Sushi Port Douglas, applied to the Fair Work Commission for approval of the Sushi Port Douglas Pty Ltd Enterprise Bargaining Agreement 2014. The application was opposed by the Fair Work Ombudsman. The dispute centred around the adequacy and fairness of the proposed enterprise bargaining agreement (EBA) in accordance with the Fair Work Act 2009. Specifically, the Fair Work Ombudsman raised concerns about certain clauses in the EBA, which they believed did not meet the requirements for "better off overall" and "no disadvantage" tests.

The legal issues before the Commission included whether the proposed EBA met the statutory requirements for approval and whether the provisions of the agreement provided for employees to be "better off overall" than their previous entitlements. The Commission examined the specific clauses in dispute and assessed the overall fairness of the agreement, taking into account the nature of the enterprise, the bargaining positions of the parties, and the economic context in which the agreement was negotiated.

In determining the matter, the Fair Work Commission found that while the proposed EBA contained some provisions that did not meet the "better off overall" test, these were not significant enough to invalidate the entire agreement. The Commission made several modifications to the agreement to ensure compliance with the statutory requirements. After these adjustments, the Commission was satisfied that the EBA met the necessary criteria and approved the agreement. The Fair Work Commission's decision was that the Sushi Port Douglas Pty Ltd Enterprise Bargaining Agreement 2014, with the modifications made, was fit for approval under the Fair Work Act 2009.

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