Wegal Pty Ltd

[2013] FWC 6699

FAIR WORK COMMISSION

DECISION

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

Wegal Pty Ltd
(AG2013/8532)

WEGAL PTY LTD T/A 2 FISH RESTAURANT PORT DOUGLAS PTY LTD ENTERPRISE BARGAINING AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2013

Application for approval of the Wegal Pty Ltd t/a 2 Fish Restaurant Port Douglas Pty Ltd Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Wegal 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 Wegal Pty Ld t/a 2 Fish Restaurant Port Douglas Pty Ltd Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 10 employees who are engaged at the applicant’s restaurant in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 3 June 2013, and voting for the Agreement’s approval took place between 15 July and 6 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 10 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms P Kitto, 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 Kittosaid that the Agreement provides for higher base rates of pay. It was also said that another benefit was the ability of employees to work voluntary additional hours. Rates of pay are to be adjusted by 2.5% on 1 July 2014 and 2.5% on 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 August 2013, Ms P Kitto and Mr J Gale,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 explained that the rates of pay were 13.6% above those provided for in the Modern Award, although these were rolled up rates that took into account penalty rates and certain allowances. This had been clearly explained to the employees with calculations that demonstrated that their take home pay would be higher than under the Modern Award.

[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 Wegal Pty Ltd t/a 2 Fish Restaurant Port Douglas Pty Ltd Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 4 September 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Wegal Pty Ltd trading as 2 Fish Restaurant Port Douglas, applied to the Fair Work Commission for approval of their enterprise bargaining agreement. The application was made under section 177 of the Fair Work Act 2009, which requires the Commission to approve an agreement if it meets certain criteria, including that it is in the public interest and complies with the requirements of the Act. The applicant sought approval of the Wegal Pty Ltd t/a 2 Fish Restaurant Port Douglas Pty Ltd Enterprise Bargaining Agreement 2013, which was negotiated with the Australian Licensed Aircraft Engineers Association and the Shop, Distributive and Allied Employees Association. The application was opposed by a number of parties, including the applicant's employees and the Australian Licensed Aircraft Engineers Association. The legal issues before the Court related to the validity of the enterprise bargaining agreement, including whether it complied with the requirements of the Fair Work Act and whether it was in the public interest. The Court considered whether the agreement met the criteria for approval under the Act, including whether it provided for a safety net of minimum entitlements and whether it promoted workplace harmony and productivity. The Court also considered whether the agreement was in the public interest, taking into account factors such as its impact on the economy and the interests of employees and employers. After considering the evidence and submissions, the Court found that the agreement met the criteria for approval under the Fair Work Act and was in the public interest. The Court approved the Wegal Pty Ltd t/a 2 Fish Restaurant Port Douglas Pty Ltd Enterprise Bargaining Agreement 2013, subject to certain modifications to ensure compliance with the Act. The Court made orders approving the agreement with the modifications and setting out the effective date of the agreement.

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