The Rising Sun Restaurant & Bar

[2014] FWCA 909

[2014] FWCA 909

FAIR WORK COMMISSION

DECISION

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

The Rising Sun Restaurant & Bar
(AG2014/3432)

NUNU AND THE RISING SUN ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 7 FEBRUARY 2014

Application for approval of the Nunu and the Rising Sun Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Rising Sun Restaurant & Bar (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Nun and the Rising Sun Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 17 employees who are employed at the applicant’s two restaurants in Palm Cove, Queensland and does not cover the Restaurant Manager or the Executive Chef. 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 3 October 2013, and voting for the Agreement’s approval took place between 4 and 6 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 12 of the 14 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 January 2014. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the period for filing the application to 20 January 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Escott 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 Escottsaid 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 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 28 January 2014, Ms P Kitto appeared 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 said that the loaded rates of pay are 15% above the rates of pay under the Modern Award and that calculations had been performed in relation to the staff’s rosters indicating that the staff would be better off overall under the Agreement. These calculations had been presented and explained to the staff.

[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 Nunu and the Rising Sun Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 4 February 2014 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

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