The Beach Shack

[2014] FWCA 980

[2014] FWCA 980

FAIR WORK COMMISSION

DECISION

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

The Beach Shack
(AG2014/3444)

HANNAFORDS EVENTS PTY LTD T/AS THE BEACH SHACK RESTAURANT AND BAR ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 MARCH 2014

Application for approval of the Hannafords Events Pty Ltd t/as The Beach Shack Restaurant and Bar Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Beach Shack (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Hannafords Events Pty Ltd t/as The Beach Shack Restaurant and Bar Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 16 employees, excluding the Executive Chef and the Restaurant Manager, who are engaged at the applicant’s restaurant in Port Douglas, Queensland. 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 12 August 2013, and voting for the Agreement’s approval took place between 1 and 3 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 January 2014. While I note that the application was filed outside of the statutory time limit set out in s 185(3)(a), I consider it fair in all the circumstances to extend the time for filing to 21 January 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms N Johnson, General Manager, identified the Restaurant Industry Award 2010 [MA000119] and the Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Johnsonsaid that the Agreement did provide for some terms and conditions that were less beneficial than those under the reference instruments in that employees are not paid penalty rates for work performed on weekends or public holidays. However, staff are paid a higher loaded base rate of pay. Rates of pay are to be increased by 2.5% on 1 July 2014 and 1 July 2015. 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 31 January 2014, Ms P Kitto appeared with Ms N Johnson 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 restaurant was open all year round, but closes most public holidays.

[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 Hannafords Events Pty Ltd t/as The Beach Shack Restaurant and Bar Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 7 February 2014 and have a nominal expiry date of 30 December 2016.

DEPUTY PRESIDENT

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