Agnew Legal Pty Ltd - [2012] FWA 10861

[2012] FWA 10861

FAIR WORK AUSTRALIA

DECISION

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

Agnew Legal Pty Ltd
(AG2012/8452)

Restaurants
COMMISSIONER ASBURY	BRISBANE, 24 DECEMBER 2012

Application to approve the CLB No. 1 Pty Ltd Enterprise Agreement 2012 - Agreement does not pass the Better Off Overall Test - Consideration of whether Agreement should be approved on the grounds in s.189 of the Act - Exceptional circumstances - Public interest - Finding that there are no exceptional circumstances - Application for approval on grounds in s.189 refused.

BACKGROUND

[1] This is an application by Agnew Legal Pty Ltd as bargaining representative for CLB No. I Pty Ltd trading as Wagamama (CLB) for approval of the CLB No. 1 Pty Ltd - Enterprise Agreement 2012 (the Agreement). The application is made pursuant to Chapter 2, Part 2-4 of the Fair Work Act 2009 (the Act).

[2] CLB is a wholly owned subsidiary of Edible Concepts Holdings Pty Ltd and provides Asian style food in a casual dining environment, under licence from a company located in the United Kingdom. CLB employs 226 staff in classifications covered by the proposed Agreement and operates 11 stores located variously in Brisbane, Sydney, Canberra and Perth.

[3] By email dated 6 November 2012, I advised the representative of CLB of significant concerns about whether the Agreement passed the better of overall test (BOOT) as set out in s.193 of the Act, when considered against the terms of the Restaurant Industry Award 2010 (the Award). In particular, I highlighted the fact that the wage rates in the Agreement are insufficient to offset the obvious detriment to employees associated with the removal of penalty payments including those in relation to Saturdays, Sundays, public holidays and late nights.

[4] CLB’s representative responded to that email acknowledging that the Agreement does not pass the BOOT and indicating that it intended to rely on the public interest ground in s.189(2) of the Act as the basis for approval of the Agreement. Subsequently, CLB’s representative corresponded with the Tribunal indicating that it still wished to leave open the option of providing undertakings to address any concerns about whether the Agreement passed the BOOT as an alternative to relying on the grounds in s.189(2) of the Act.

APPROVAL OF AGREEMENT UNDER S.189

[5] Section 189 of the Act provides an alternative basis upon which an agreement that does not pass the BOOT can be approved, in circumstances where the Tribunal is satisfied that, because of exceptional circumstances, the approval would not be contrary to the public interest. That section provides as follows:

189 FWA may approve an enterprise agreement that does not pass better off overall test—public interest test

Application of this section

(1) This section applies if:

(a) FWA is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.

Approval of agreement if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 10861
Decision Date: 24 DECEMBER 2012

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Agnew Legal Pty Ltd, a company seeking approval for the CLB No. 1 Pty Ltd Enterprise Agreement 2012. The application centred on whether the agreement met the Better Off Overall Test (BOOT) required for approval under the Fair Work Act 2009. The dispute revolved around whether the agreement should be approved despite failing the BOOT, considering the exceptional circumstances and public interest as outlined in section 189 of the Act.

The court had to determine if the agreement should be approved despite not passing the BOOT test. This required an examination of whether there were exceptional circumstances warranting approval. Additionally, the court considered whether the agreement served the public interest, as stipulated in section 189. The analysis focused on the broader implications of the agreement on the workforce and the potential impact on public welfare, given the context in which the agreement was made.

In reaching its decision, the court meticulously evaluated the terms of the agreement and its effects on the employees. The court found that while the agreement had some beneficial aspects, it did not sufficiently meet the BOOT criteria. Furthermore, the court determined that there were no exceptional circumstances that would justify approving the agreement under section 189. The court also concluded that the public interest did not favour the approval of the agreement. Consequently, the application for approval of the CLB No. 1 Pty Ltd Enterprise Agreement 2012 was refused.

Orders