Taqueria Logistics Pty Ltd

[2014] FWCA 2997

[2014] FWCA 2997

FAIR WORK COMMISSION

DECISION

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

Taqueria Logistics Pty Ltd
(AG2014/967)

TAQUERIA LOGISTICS PTY LTD - ENTERPRISE AGREEMENT 2014-2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 13 MAY 2014

Application for approval of the Taqueria Logistics Pty Ltd - Enterprise Agreement 2014 -2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal 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 Taqueria Logistics Pty Ltd - Enterprise Agreement 2014 - 2018 (the ‘Agreement’). The Agreement is to cover 42 employees, the majority of whom are part time, other than Restaurant Managers, who are employed at the applicant’s restaurant in Hamilton, New South Wales. 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 5 March 2014 and voting for the Agreement’s approval took place on 13 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot 14 employees, who cast a valid vote, unanimously agreed to approve the Agreement. The application for approval of the Agreement was filed outside of the 14 days required by s 186(3)(a). Given the intervening public holidays for Easter and Anzac Day, I consider it fair to extend that period to 28 April 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Timbs, Director of Taqueria Logistics Pty Ltd,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 Timbssaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including loaded rates which do not include weekend penalties or public holiday rates or annual leave loading, lack of provision for a job searching entitlement or transfer to lower paid duties in redundancy situations and removal of meal, split shift, tool and special clothing allowances and other non applicable allowances. However, the allowances and penalty rates have been loaded into base rates of pay which are 9-16% higher for permanent employees and 35-38% higher for casual employees. Rates of pay are to be adjusted by either $0.25 per hour, or in accordance with the Commission’s Minimum Wage Review decisions, whichever is the higher and is to be applied 1 July each year during the Agreement’s nominal term. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clause number 7.1 and clause 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 7 May 2014, Mr C Agnew, Solicitor, appeared for the employer. 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. The calculations undertaken in comparing the loaded rates of pay with the rates of pay and penalty rates under the Awards has been performed with typical and “equitable” rosters. Mr Agnew also offered to provide undertakings regarding the pay increases to be applied, as listed in clause 3.2.2, which are subject to the outcome of the Commission’s Annual Wage Review. Mr Agnew submitted that if the Annual Wage Review is greater than $0.25 per hour, the employer will pay the difference between those amounts, in addition to an the increase of $0.25 per hour. 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, 191 & 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Taqueria Logistics Pty Ltd - Enterprise Agreement 2014-2018. Pursuant to s 54 of the Act, the Agreement shall operate from 14 May 2014 and have a nominal expiry date of 1 February 2018.

DEPUTY PRESIDENT

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