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

[2015] FWCA 5192

[2015] FWCA 5192

FAIR WORK COMMISSION

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

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