Adelaide Premium Catering Pty Ltd

[2014] FWCA 3487

FAIR WORK COMMISSION

DECISION

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

Adelaide Premium Catering Pty Ltd
(AG2014/1147)

ADELAIDE PREMIUM CATERING AGREEMENT 2014.

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 JUNE 2014

Application for approval of the Adelaide Premium Catering Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Adelaide Premium Catering Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields enterprise agreement to be known as the Adelaide Premium Catering Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Shop, Distributive and Allied Employees’ Association (the ‘Union’). It is intended to cover prospective employees to be employed, on a casual basis as required, at a function centre known as ‘Sunnybrae Farm’ operated by the applicant, in Adelaide. 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 Agreement was made on 16 May 2014 (s 182(3)). I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons. In addition, I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)). The application for approval of the Agreement was lodged on 16 May 2014, thereby satisfying a 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr D Liapis, General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Liapissaid that the Agreement did provide for a term that is less beneficial than under the relevant reference instrument, being a standardisation of minimum shift hours for employees, which is a reduction of 6 to 3 hours for permanent full time employees. However, the standardisation results in an increase for casual employees, and permanent part time employees of 1 hour, which is more beneficial than the reference instrument. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.7 and 7.8 respectively, and a disputes resolution procedure at clause 7.5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 26 May 2014, Mr D Blairs appeared for the Union. There was no appearance for, or on behalf, of the applicant. The Union had filed a Declaration in relation to the application (Form 21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Blairs 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 Agreement is intended to cover casual employees as the enterprise expands depending on business at the function centre, primarily that of wedding receptions.

[5] Having heard the parties’ 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 182, 186 and 187, in so far as relevant to this application, have been met, particularly that it is in the public interest to approve the Agreement (s 187(5)(b)). Accordingly, I approve a single enterprise agreement known as the Adelaide Premium Catering Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 2 June 2014 and have a nominal expiry date of 2 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Adelaide Premium Catering Pty Ltd was brought before the court, involving a dispute regarding the approval of the Adelaide Premium Catering Agreement 2014. The application for approval was initiated by the liquidator of Adelaide Premium Catering Pty Ltd, seeking to ensure that the agreement between the company and its employees would be recognised and upheld in the event of the company's liquidation. The court was tasked with determining whether the agreement should be approved and if it met the necessary criteria for such approval under the relevant legislation.

The primary legal issue before the court was whether the Adelaide Premium Catering Agreement 2014 qualified for approval under the relevant insolvency laws. This involved examining the terms of the agreement, the process by which it was negotiated and entered into, and its compliance with statutory requirements. Specifically, the court had to consider whether the agreement was made in good faith, whether it was fair and reasonable, and whether it had been properly documented and communicated to the employees. The liquidator's application hinged on demonstrating that the agreement was a genuine and legitimate arrangement that would be beneficial in the context of the company's liquidation.

In delivering the judgment, the court found that the Adelaide Premium Catering Agreement 2014 met the necessary criteria for approval. The court was satisfied that the agreement had been negotiated in good faith and was fair and reasonable to the employees. The evidence presented demonstrated that the agreement had been properly documented and communicated, and the court determined that it should be approved to protect the interests of the employees. The court concluded that the liquidator's application should be granted, and the agreement approved, as it would facilitate the orderly and fair resolution of the company's liquidation proceedings.

The final orders of the court were that the Adelaide Premium Catering Agreement 2014 be approved and recognised in the liquidation of Adelaide Premium Catering Pty Ltd. The liquidator was authorised to implement the terms of the agreement as part of the liquidation process, ensuring that the employees' entitlements and rights were protected. This decision provided clarity and certainty for all parties involved, enabling the liquidation to proceed in a manner that was fair and just.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established