Urban Appetite Pty Ltd t/a Degani @ Karingal

[2017] FWCA 3657

[2017] FWCA 3657

FAIR WORK COMMISSION

DECISION

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

Urban Appetite Pty Ltd t/a Degani @ Karingal
(AG2017/1789)

MOMILLIONS - HOSPITALITY - ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 JULY 2017

Application for approval of the Momillions - Hospitality- Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ms Penny Stylianou of Urban Appetite Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as Momillions - Hospitality- Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 26 employees who are engaged in the applicant’s café in Karingal, Victoria. 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 20 April 2017 and voting for the Agreement’s approval took place on 12 May 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 19 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 May 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Penny Stylianou identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). In error, Ms Stylianou hadsaid the agreement provides for no terms which are either more or less beneficial than the reference instrument. This is not correct, as the Agreement provides for rates of pay which are ten per cent higher than the rates of pay in the reference instrument. However, the Agreement does not provide for penalty rates on weekends. At a hearing for the application on 19 June 2017, Ms Stylianou said that penalty rates had been absorbed into the higher hourly rate of pay. She described the café’s operating hours – it opens at 7.30am and closes at 5.30pm Monday to Friday (except Thursday when the café closes at 9pm) and on Saturday and Sunday it closes at 5pm. No employees work solely on weekends. Ms Stylianou said she had undertaken calculations comparing the Agreement with the reference instrument which disclosed that employees were better off under the Agreement. Ms Stylianou provided a copy of these calculations to my Chambers on 28 June 2017. The calculations do show employees are better off overall under the Agreement, albeit only marginally. On balance, I am satisfied that the Agreement passes the BOOT.

[4] Also during the hearing, Ms Stylianou 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. I raised with Ms Stylianou some potential issues in relation to clauses 3.2 Wages, 6.1.2 Notice of Termination and 7.2.1 Consultative term. In particular, clause 3.2 provides no rate of pay for Grade 3 employees; clause 6.1.2 does not provide for an additional week of notice for an employee who has at least two years service and who is over 45 years old and clause 7.2.1 is not activated in circumstances where the employer decides to change an employee’s regular hours of work or roster. Ms Stylianou offered to provide an undertaking to remedy each of these omissions, which she did on 30 June 2017. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. The Agreement provides for the mandatory flexibility terms at clause 7.1 and a disputes resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation, the Agreement itself and the undertakings, I am satisfied that all of the requirements of the Act, in ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Momillions - Hospitality- Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 11 July 2017 and have a nominal expiry date 11 July 2021.

DEPUTY PRESIDENT

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