Western Food Group Pty Ltd T/as Bunker Cafe Bar & Restaurant Pty Ltd

[2016] FWCA 5831

[2016] FWCA 5831

FAIR WORK COMMISSION

DECISION

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

Western Food Group Pty Ltd T/as Bunker Cafe Bar & Restaurant Pty Ltd
(AG2016/1691)

THE BUNKER CAFÉ BAR AND RESTAURANT PTY LTD ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 AUGUST 2016

Application for approval of the Bunker Cafe Bar & Restaurant Pty Ltd Enterprise Agreement 2016 – Agreement approved.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bunker Café Bar & Restaurant Pty Ltd (the ‘applicant’) which seeks the approval by the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bunker Cafe Bar & Restaurant Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). There were no bargaining representatives involved in the Agreement making process. The Agreement is to cover 29 employees who are engaged in various hospitality roles at The Bunker Café & Restaurant, Springwood, New South Wales. 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 7 June 2016, and voting for the Agreement’s approval took place on 29 June 2016. The time limits under s 181(2) of the Act are thereby satisfied. Two of the employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 June 2016 thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Ross Purser, Director, identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Purser said that while the Agreement does not provide for weekend, public holiday or shift penalties, it provides for higher rates of pay of between 4-5% than those contained in the reference instrument. Rates of pay are to be annually adjusted so as to ensure the rates always remain 3% higher than the Award rates. The Agreement provides for the mandatory flexibility term at clauses 23 and mandatory consultation terms at clauses 21 and 22. A disputes resolution procedure at clause 24 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 17 August 2016, Mr Daniel Tracey, Workplace Consultant, appeared for the employer. Mr Tracey 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 Tracey referred to indicative rosters for employees (including casuals) to demonstrate that the employees will be better off overall than if they were covered by the Award.
[5] In a query from me, Mr Tracey believed that the low number of employees (two) who turned out to vote was largely attributable to employees being ‘apathetic’ towards the enterprise agreement process. The Commission was also concerned that in Mr Purser’s Form F17 he recorded that all 29 employees were full time permanent employees. This was unusual for a restaurant business. Mr Tracey later filed a supplementary Statutory Declaration deposed by Mr Purser, outlining the demographic of the workforce which disclosed that there were 7 full time employees, 13 casuals and no part time employees.

[6] 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 Bunker Cafe Bar & Restaurant Pty Ltd Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 25 August 2016, and have a nominal expiry date 18 August 2020.

DEPUTY PRESIDENT

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