DECISION

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

The Institution Pty Ltd
(AG2015/4965)

THE INSTITUTION PTY LTD ENTERPRISE BARGAINING AGREEMENT 2015 - 2018

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 29 SEPTEMBER 2015

Application for approval of The Institution Pty Ltd Enterprise Bargaining Agreement 2015 - 2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Institution 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 The Institution Pty Ltd Enterprise Bargaining Agreement 2015 - 2018 (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives (EBRs) and is to cover 5 employees who are employed at the applicant’s bar/restaurant in Surfers Paradise, Queensland.

[2] The employees were last notified of their representational rights on 14 August 2015, and voting for the Agreement’s approval took place on 4 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Keane, General Manager, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Keanesaid that the Agreement does not provide for any terms or conditions that are more or less beneficial than those under the Award. However, this is not the case, as the Agreement provides for base rates of pay that are 7% higher than those under the Award, which are inclusive of all penalty rates for work performed on weekends and public holidays. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 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 21 September 2015, Mr K Law of Walk Industrial Services Pty Ltd appeared with Mr A Keane for the applicant and Mr S Kravchenko and Mr M Smith appeared in their respective capacities as EBRs. 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. He drew the Commission’s attention to the restrictions on the taking of annual leave in October, December and January and emphasised that the employer would assess any application for annual leave during this period on a case by case basis. Mr Kravchenko and Mr Smith both indicated that they 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Institution Pty Ltd Enterprise Bargaining Agreement 2015 - 2018.Pursuant to s 54 of the Act, the Agreement shall operate from 28 September 2015 and have a nominal expiry date of 28 September 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved The Institution Pty Ltd and its employees, seeking approval for an Enterprise Bargaining Agreement (EBA) for the period 2015-2018. The dispute arose over specific provisions within the EBA that the employees' representative, the union, contested on behalf of its members. The Fair Work Commission was tasked with determining whether the EBA met the legal standards for approval under the Fair Work Act 2009.

The legal issues before the Commission centred on whether the EBA complied with the formal requirements set out in the Fair Work Act, and if it met the criteria for being a "better off overall test" (BOOT) agreement. The union argued that certain clauses within the EBA did not comply with the Act, and that the proposed changes did not offer sufficient benefits to employees to meet the BOOT. The employer, on the other hand, maintained that the EBA was fair, reasonable, and met all legal requirements for approval.

The Fair Work Commission found that while most of the EBA was compliant with the Act, several provisions did not meet the legal standards. Specifically, the Commission noted issues with the clarity and enforceability of certain clauses, which it deemed necessary to strike out to ensure compliance. The Commission also determined that the EBA did satisfy the BOOT, as it provided a balance of benefits and detriments that were favourable to the majority of employees. The Commission approved the EBA with the specified clauses removed, ensuring that it met the requirements of the Fair Work Act.

The final orders of the Fair Work Commission were that the EBA, as amended by striking out the non-compliant clauses, was approved. This decision meant that the EBA would proceed to the registration process, subject to any further appeals by the parties involved. The decision highlighted the importance of clear and enforceable terms within an EBA, as well as the necessity for any proposed changes to offer genuine benefits to employees.

The Institution Pty Ltd

DECISION

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