TGI Fridays Asia Pacific Pty Ltd as trustee for TGI Fridays Asia Pacific Unit Trust t/as TGI Fridays Asia Pacific Pty Ltd

[2016] FWCA 5395

[2016] FWCA 5395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

TGI Fridays Asia Pacific Pty Ltd as trustee for TGI Fridays Asia Pacific Unit Trust t/as TGI Fridays Asia Pacific Pty Ltd
(AG2016/3644)

TGI FRIDAYS ASIA PACIFIC ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 AUGUST 2016

Application for approval of the TGI Fridays Asia Pacific Enterprise Agreement 2016 – whether Agreement meets Better Off Overall Test – undertakings – Agreement approved.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by TGI Fridays Asia Pacific Pty Ltd as trustee for TGI Fridays Asia Pacific Unit Trust t/as TGI Fridays Asia Pacific 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 TGI Fridays Asia Pacific Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with Mr N Armbrister, Ms P Anstey and Ms N Reponia, nominated employee bargaining representatives (EBRs) and is to cover 433 employees who are employed in various classifications at the applicant’s restaurants in New South Wales, Victoria and South Australia. 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 11 March 2016, and voting for the Agreement’s approval took place on 17 June 2016. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic voting process, 235 of the 316 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 June 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms M Williams, Solicitor, identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Williams said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instrument and that there are no less beneficial terms. This is not strictly correct as the Agreement rates have been ‘loaded up’ to take account of shift, weekend, public holiday and annual leave loadings. To achieve this it was said that the Agreement provides rates of pay which are above the Award minimum (on average being 12.1% above-Award). The agreement also provides for overtime paid at 200% of the employee’s ordinary rate of pay, subject to the employee having worked eight hours, the option of the employee being able to leave work early with consent of the employer, and a meal to the value of $25 for employees working on a public holiday. The Agreement includes 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] Prior to the hearing of the application, the Commission was advised that Mr Armbrister and Ms Anstey had concerns with the approval of the Agreement, particularly as to whether the BOOT had been met. The Commission’s Enterprise Agreement Triage Team also identified some concerns and provided indicative rosters which were made available to the parties.

[5] At a hearing of the application on 28 July 2016, Mr R. Millar of Counsel appeared with permission for the applicant and Mr Armbrister and Ms Anstey appeared in their roles as EBRs. Mr Millar relied on a submission and calculations prepared by Mr Richard Harper, Occupations Analyst. Mr Harper explained the methodology used by the applicant in calculating the wage rates and was subject to cross examination by Mr Armbrister and Ms Anstey. Submissions were put by all parties in the proceeding. As a result of consideration of matters raised by the EBRs and the Commission, a number of undertakings were proposed by the applicant. Further submissions were also sought from the parties. The undertakings were also reviewed by the Commission’s Triage Team. The effect of the undertakings are that the applicant undertakes to:

(a) increase all wage rates under clause 3.2.2 by either the Consumer Price Index increase for the financial year ending 30 June prior to the anniversary of the operative date of the Agreement or the annual increase in the national Minimum Wage, whichever is greater.

(b) increase the pay rates in the proposed Enterprise Bargaining Agreement to 17.1% above the Award base rates for part time employees as at the test time.

(c) increase casual rates to 17.1% above the Award base rates as at the test time.

(d) increase the apprentice rates to 17.1% above the Award base rates as at the test time.

(e) pay employees who work only weekend shifts at 36% above the Award base rates as at the test time.

(f) pay overtime rates if more than 11.5 hours are worked in a day.

(g) in addition to the operation of clause 7.3, where the Applicant proposes to introduce a change to the regular roster or ordinary hours of work of employees, the Applicant undertakes to apply the model consultation provision in schedule 2.3 of the Fair Work Regulations 2009.

Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is annexed to this Decision as Annexure A.

[6] Mr Millar further submitted as follows:

‘4. The Commission will note that the undertakings attached differ from those proposed at the hearing in following respects:

(a) the undertaking concerning annual wage rate increases has been amended to refer to the National Minimum Wage increase, in the terms suggested by the Deputy President (see transcript at PN104); and

(b) an additional undertaking has been provided to deal with consultation over changes to the regular roster or hours of work of employees, as foreshadowed by email on 29 July 2016.

5. The undertakings each operate to provide additional benefits to employees, although they do not substantially change the terms of the Agreement. There is certainly no basis for suggesting that any employee would be less inclined to approve the Agreement with the undertakings than in the form it was voted on by the employees.

6. It is respectfully submitted that with the undertakings provided, the Commission should be satisfied that all Award covered employees are better off overall under the proposed Agreement. The increases in the rates proposed substantially address the concerns raised at the hearing by the two bargaining representatives, and must also be read with the other terms of the Agreement which are more beneficial than the underlying Award, as referred to in section 3.4 of the statutory declaration of Ms Williams in support of the application for approval. Specific reference should also be made to clause 3.2.5 of the Agreement, which provides additional protection to employees to preservation of pre-existing wage rates.’

[7] Having reviewed the calculations provided by the parties and given that the BOOT is not an exercise of a ‘line by line’ comparison between corresponding terms in the Award, I am satisfied that the concerns of Mr Armbrister and Ms Anstey have been addressed and the BOOT has been otherwise met. I note that the rates are now 17.1% higher than those in the Award, at the ‘test time’ of 27 June 2016 (s 193(6)).

[8] Having considered the parties’ submissions and the evidence of Mr Harper, and upon reviewing the terms of the preapproval process documentation, the Agreement itself and the undertakings offered by the applicant, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the TGI Fridays Asia Pacific Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 11 August 2016 and have a nominal expiry date of 4 August 2020.

DEPUTY PRESIDENT

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Annexure A