The Rising Sun Restaurant & Bar Summary

[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

Printed by authority of the Commonwealth Government Printer

The dispute before the Fair Work Commission involved The Rising Sun Restaurant & Bar, an applicant, and various employees represented by the Hospitality Workers Union of Australia. The primary issue was whether the proposed Nunu and the Rising Sun Enterprise Bargaining Agreement 2013 should be approved by the commission, considering the arguments presented by both parties. The commission was tasked with ensuring that the agreement was in compliance with the Fair Work Act 2009 and that it provided fair and reasonable terms for the employees.

The key legal issues addressed by the commission included whether the agreement met the procedural fairness requirements, whether it contained unfair terms under the Fair Work Act, and if the agreement was consistent with the principles of the Australian labour market. Additionally, the commission examined whether the agreement appropriately reflected the balance of power between the employer and the employees and whether it provided adequate protections and benefits for the workforce.

The Fair Work Commission found that the proposed agreement was procedurally sound, met the necessary legal criteria, and was fair and reasonable for the employees. The commission considered the arguments and evidence presented by both parties, focusing on the balance of power, the nature of the agreement, and its compliance with the Fair Work Act. The commission determined that the agreement was in the best interests of the employees and approved it, noting that it provided reasonable terms and conditions of employment, including provisions for wages, leave entitlements, and dispute resolution mechanisms.

As a result of the commission's decision, the Nunu and the Rising Sun Enterprise Bargaining Agreement 2013 was approved and will now govern the employment conditions for the employees of The Rising Sun Restaurant & Bar. The final orders of the commission mandated that the agreement be implemented and enforced, with the provision for any disputes arising from its interpretation or application to be resolved according to the agreement's dispute resolution procedures.

The Rising Sun Restaurant & Bar

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Background to the litigation

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Legal Principle Established