Torrevan Pty Ltd

[2013] FWCA 8235

[2013] FWCA 8235

FAIR WORK COMMISSION

DECISION

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

Torrevan Pty Ltd
(AG2013/10768)

TORREVAN PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 OCTOBER 2013

Application for approval of the Torrevan Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Torrevan 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 Torrevan Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 71 employees who are engaged at The Witch’s Cauldron, a popular restaurant in Subico, Western Australia.

[2] The employees were last notified of their representational rights on 12 August 2013, and voting for the Agreement’s approval took place on 20 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 40 of the employees who voted, unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms D Schmook, Director identified the Restaurant Industry Award 2013 as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Schmook said that the Agreement does provide for some less beneficial terms and conditions, including the removal of penalty rates for working in the evening, weekends and on public holidays for all employees and the removal of permanent employee’s entitlement to annual leave loading. However, the Agreement provides employees with terms and conditions that are more beneficial than those under the reference instrument, including higher wage rates to offset the reduction in entitlements. A comparison document of indicative rosters demonstrated that in all cases, employees will be better off than under the Modern Award. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses Part 7, clause 2 and Part 7, clause 3 respectively, and a disputes resolution procedure at Part 7, clause 1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 21 October 2013, Ms Schmook from Torrevan Pty Ltd,appeared with Mr G Lilleyman of Employment Services & Solutions Australia Pty Ltd. Mr Lilleyman 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. Mr Lilleyman noted that the majority of employees engaged at the restaurant were casual employees. Mr Lilleyman explained that the restaurant has been operating under a single owner for 43 years and employees were previously covered by a collective agreement on fairly similar terms to those proposed in the Agreement.

[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 Torrevan Pty Ltd Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 28 October 2013 and have a nominal expiry date of 12 September 2017.

DEPUTY PRESIDENT

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