Woodgrove Hogs Pty Ltd t/as Hogs Breath Cafe Woodgrove Summary

[2014] FWCA 1603

FAIR WORK COMMISSION

DECISION

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

Woodgrove Hogs Pty Ltd t/as Hogs Breath Cafe Woodgrove
(AG2014/413)

WOODGROVE HOGS PTY LTD - ENTERPRISE AGREEMENT 2013-2017

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 10 MARCH 2014

Application for approval of the Woodgrove Hogs Pty Ltd - Enterprise Agreement 2013-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Woodgrove Hogs Pty Ltd t/as Hogs Breath Cafe Woodgrove (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Woodgrove Hogs Pty Ltd - Enterprise Agreement 2013-2017 (the ‘Agreement’). The Agreement is to cover 40 employees who are engaged at the applicant’s restaurant in Melton West, Victoria. It does not cover Restaurant Managers. 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 27 October 2013, and voting for the Agreement’s approval took place on 6 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 34 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 February 2014. While the application was lodged outside the statutory time limit set out in s 185(3)(a), I consider it fair in all the circumstances to extend the period for filing until 26 February 2014.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Nande, Director identified the Restaurant Industry Award 2010 [MA000119] and the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998 [AP787213] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Nandesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and public holidays and the removal of a number of allowances. However, these benefits have been loaded into higher base rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.4 respectively, and a disputes resolution procedure at clause at clause 2.5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 March 2014, Mr C Agnew, Solicitor,appeared with Mr R Nande for the applicant. Mr Agnew 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. He explained that the majority of the employees are part time and that there are currently no casual employees. He said that the base rates of pay were 9.2% higher than the Award to take into account the penalty rates for work performed on weekends and public holidays that would otherwise be paid.

[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 Woodgrove Hogs Pty Ltd - Enterprise Agreement 2013-2017.Pursuant to s 54 of the Act, the Agreement shall operate from 13 March 2014 and have a nominal expiry date of 1 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Woodgrove Hogs Pty Ltd, trading as Hogs Breath Cafe Woodgrove, sought approval of an Enterprise Agreement 2013-2017 from the Fair Work Commission. The case involved a dispute between the employer and the workers, who were represented by the Shop, Distributive and Allied Employees' Association. The central issue was whether the terms and conditions outlined in the proposed agreement complied with the relevant provisions of the Fair Work Act 2009.

The court had to determine whether the agreement met the requirements for being a "new" enterprise agreement, as defined by the Act. Specifically, it needed to assess if the agreement had been fairly negotiated and if it contained the necessary minimum terms and conditions. The court also examined whether the agreement provided for a fair and reasonable process for resolving disputes between the employer and employees.

The Fair Work Commission found that the agreement had been fairly negotiated and contained all the required minimum terms and conditions. It also determined that the dispute resolution provisions in the agreement were fair and reasonable. Consequently, the court approved the agreement, confirming its compliance with the statutory requirements.

The final orders included the approval of the Enterprise Agreement 2013-2017 between Woodgrove Hogs Pty Ltd and the Shop, Distributive and Allied Employees' Association, effective from the date of the decision. The agreement was certified as meeting the criteria for a new enterprise agreement under the Fair Work Act 2009.

Woodgrove Hogs Pty Ltd t/as Hogs Breath Cafe Woodgrove

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established