The Mill-House Bar Pty Ltd T/A The Mill House

[2015] FWCA 7490

[2015] FWCA 7490

FAIR WORK COMMISSION

DECISION

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

The Mill-House Bar Pty Ltd T/A The Mill House
(AG2015/5266)

THE MILL-HOUSE BAR PTY LTD ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 OCTOBER 2015

Application for approval of the The Mill-House Bar Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Mill-House Bar Pty Ltd t/as The Mill House (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Mill-House Bar Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 10 employees who are employed at the applicant’s café/bar in Melbourne, Victoria.

[2] The employees were last notified of their representational rights on 3 August 2015, and voting for the Agreement’s approval took place between 30 September and 2 October 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 6 of the 7 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 October 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Millett, Owner/Director, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Millettsaid that the Agreement provides for higher rates of pay and enhanced overtime entitlements and that there are no less beneficial terms. However, this is not strictly true, as penalty rates, annual leave loading and uniform allowances, amongst other things, have been ‘loaded’ into a higher base rate of pay. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure at clause 5 provides for conciliation and mediation by the Commission.

[4] At hearings of the application on 22 and 28 October 2015, Ms L Whitfield, Solicitor,appeared for the applicant. Ms Whitfield 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 offered an undertaking that rates of pay would be increased by 2% from the first full pay period on or after 1 July each year. 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’. I am satisfied that the Agreement passes the BOOT.

[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 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Mill-House Bar Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 November 2015 and have a nominal expiry date of 3 November 2019.

DEPUTY PRESIDENT

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