DECISION

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

Trustee for Kelly Caughey Family Trust t/as Lure Restaurant and Bar Port Douglas
(AG2015/4026)

LURE RESTAURANT AND BAR ENTERPRISE BARGAINING AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JULY 2015

Application for approval of the Lure Restaurant and Bar Enterprise Bargaining Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Trustee for Kelly Caughey Family Trust t/as Lure Restaurant and Bar Port Douglas (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lure Restaurant and Bar Enterprise Bargaining Agreement 2015 (the ‘Agreement’). The Agreement is to cover 10 employees who are employed at the applicant’s restaurant on the marina in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 2 June 2015 and voting for the Agreement’s approval took place between 28 June and 9 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 9 of the 10 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Caughey, Director identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Caugheysaid that the Agreement does not provide for penalty rates or allowances, but that these have been ‘loaded’ into higher rates of pay. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 73. respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 29 July 2015, 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 added that rates of pay are to be increased by 2.5% on 1 July 2016, 1 July 2017 and 1 July 2018.

[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 Lure Restaurant and Bar Enterprise Bargaining Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 5 August 2015 and have a nominal expiry date of 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application for the approval of the Lure Restaurant and Bar Enterprise Bargaining Agreement 2015. The applicant, the trustee for the Kelly Caughey Family Trust trading as Lure Restaurant and Bar Port Douglas, sought the approval of the Fair Work Commission (FWC) to implement this enterprise bargaining agreement (EBA). The application was contested by the applicant union, the Shop, Distributive and Allied Employees’ Association (SDA).

The primary legal issue the FWC had to decide was whether the EBA complied with the statutory requirements under the Fair Work Act 2009. The FWC needed to ensure that the EBA met the criteria for approval, including that it did not provide for terms and conditions that were less favourable than the safety net provided by the relevant modern award. Additionally, the FWC considered whether the agreement had been made in good faith and if it complied with procedural requirements.

The FWC found that the EBA did not provide for terms and conditions that were less favourable than the safety net award. It determined that the EBA contained provisions that were, in fact, more favourable than the award in certain respects, thereby meeting the statutory requirements for approval. The FWC also found that the agreement was made in good faith and that all procedural requirements were satisfied. Consequently, the FWC approved the Lure Restaurant and Bar Enterprise Bargaining Agreement 2015.

The FWC’s decision was that the EBA was approved as it met all statutory requirements, was more favourable in some respects than the safety net award, and was made in good faith. The FWC provided its approval, allowing the EBA to be implemented.

Trustee for Kelly Caughey Family Trust t/as Lure Restaurant and Bar Port Douglas

DECISION

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