Ankanith Pty Ltd T/A Taza Cafe & Bakehouse
[2010] FWA 2104
•15 MARCH 2010
[2010] FWA 2104 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2009/22330)
TAZA CAFÉ AND BAKEHOUSE HOSPITALITY STAFF EMPLOYMENT AGREEMENT 2009
Hospitality industry | |
COMMISSIONER HAMPTON | ADELAIDE, 15 MARCH 2010 |
Application for approval of the Taza Café and Bakehouse Hospitality Staff Employment Agreement 2009 – Extension of time for lodgement – Whether discretion should be exercised – Considerations discussed – Application refused.
[1] An application has been made for approval of an enterprise agreement known as the Taza Café and Bakehouse Hospitality Staff Employment Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ankanith Pty Ltd T/as Taza Café and Bakehouse. The agreement is a single-enterprise agreement designed to apply to the relatively small café business of the applicant located at Elizabeth South.
[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] On 3 February 2010, I issued a comprehensive preliminary assessment of the application to the parties and sought further information and submissions. That assessment highlighted a number of apparent deficiencies with the process leading to the making of the Agreement and some major concerns with the Agreement itself. These included that the application was lodged many days outside of the 14 day period specified for the lodgement of applications pursuant to s.185(3)(b) of the Act and that there was some uncertainty as to when the Agreement was actually made with the employees.
[4] The applicant subsequently filed a revised and completed declaration in support of the Agreement, and sought an extension of time for the lodgement of the application. The matter was then further considered by me following a hearing conducted on 19 February 2010.
[5] At the conclusion of that hearing I indicated that I would consider the extension of time, and if relevant, the substantive merit of the application, based on all of the material to be supplied by the parties. The applicant has now also filed a series of, in effect, proposed variations in the form of undertakings designed to overcome concerns with the Agreement itself.
[6] The Agreement was made on 7 October 2009 by virtue of a ballot of employees that was conducted following a process that apparently accords with the relevant employee endorsement requirements of the Act. This application was filed on 22 December 2009, being some 75 days after the Agreement was made. The Agreement is not a Greenfields agreement.
[7] Section 185(3) of the Act provides relevantly as follows:
….
When the application must be made
(3) If the agreement is not a greenfields agreement, the application must be made:
(a) within 14 days after the agreement is made; or
(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allow
…
[8] Accordingly, subject to any overriding provisions, I have the capacity to permit the application in this matter to be lodged on 22 December 2009, if in all of the circumstances I consider that it is fair to do so.
[9] I note that as a result of item 15 of schedule 7 to the Transitional Act, the powers of Fair Work Australia (‘FWA’) in this regard are limited where an application for approval of an enterprise agreement is made within 14 days of the end of the bridging period, which concluded on 31 December 2009. However, the restriction in that item relates to agreements (and not applications) made in that period and as such, it is not directly relevant here.
[10] Based upon the evidence and submissions now before me, the explanation for the delay is almost entirely focused around the decision of the parties to await the outcome of an application that the employer’s representative had before another Member of FWA. 2 That matter involved an application to approve an Enterprise Agreement for a different client of the representative in similar terms to the Agreement in this application. On 23 October 2009, SDP O’Callaghan provided the parties with an assessment in the other matter which raised serious concerns about the application and these were considered at a hearing on 6 November 2009. I understand that the application in that matter was later effectively discontinued by the parties.
[11] On 9 December 2009, the employees of the applicant in this matter were consulted about potential changes to the Agreement concerning the inclusion of the model flexibility, consultation and dispute resolution clauses. Although a “re-vote” in relation to the Agreement was conducted at that time, the necessary processes to lead to a genuine agreement under the Act were not followed and I have been informed that the Agreement as filed in this matter is the document originally voted on in October 2009.
[12] In the absence of any additional express statutory direction, I consider that the consideration of fairness for the purposes of the discretion to extend the time for lodgement of the application should take into account all relevant considerations. In my view, these should include:
- the length of the delay in lodgement;
- any explanation for the delay;
- the efforts made by the parties to file the application at the earliest opportunity;
- the relatively short period allowed for the lodgement of these applications and the statutory encouragement for FWA to deal with these matters expeditiously;
- any changes in the composition of the workplace since the agreement was made; and
- the impact on the parties if the extension of time is not granted.
[13] Given that the discretion afforded to FWA is linked to the concept of fairness, this latter consideration is particularly relevant in my view.
[14] In this case, the length of the delay is very significant and although the circumstances at the workplace have not significantly changed, I consider that the explanation for the delay to be somewhat unsatisfactory.
[15] Given the Agreement was made on 7 October 2009, the application in this matter should have been filed before the time that the assessment in the other application was even issued.
[16] In any event, the decision to await the outcome of the other matter was always going to be problematic. The agreements concerned are apparently based upon the same broad model, however each application is assessed in the circumstances of each enterprise. The drafting issues further considered by these parties in light of the assessment provided by SDP O’Callaghan in the other matter, were not fundamental to the substantive issues raised by that assessment. More importantly, even if it was appropriate to await some guidance from the other matter, the parties here did not revise the Agreement after 23 October 2009 when the employer’s representative was on notice about the substantive concerns that had been raised with the other instrument. In addition, the applicant did not follow a proper process to make a subsequent agreement despite the opportunity to do so at that point.
[17] Further, even when the employees considered some potential amendments to the Agreement on 9 December 2009, it still took a further 12 days to file this application in its original terms and there is no explanation for this further delay.
[18] Importantly, I have considered the impact on the parties should the extension of time not be granted. It is clear that the process leading to the making of an agreement would need to be repeated under the Act. This would involve further delay and in all probability, some expense. Given the changes to the Act effective as from 1 January 2010, this would also mean that any new application would be assessed in the context of the better off overall test 3 and the relevant modern award rather than the no disadvantage test4 (NDT) and the NAPSA applying at the time of this application. The adoption of the more contemporary safety net would have some impact upon the terms of an Agreement that could be approved and this is a relevant consideration for both the employer and the employees, albeit from different perspectives.
[19] Ultimately, it is the concerns about the content of the Agreement that is presently before me that are also a major consideration in this particular matter. I have raised with the parties fundamental concerns about the operation of the Agreement in the context of the relevant reference instrument. These included the lack of parameters for ordinary hours, the length of shifts (both maximum and minimum) and operation of overtime and penalty provisions given the terms of the safety net award. As outlined earlier, the parties have subsequently provided some additional material clarifying the circumstances applying within the enterprise and offered a series of potential undertakings to FWA.
[20] Section 190 of the Act provides that an enterprise agreement may be approved on the basis of undertakings that deal with certain concerns held by FWA. Subsections 190(3) and 4 provide that the Tribunal may, after considering the views of the bargaining representatives accept undertakings which address concerns arising under ss.186 and 187 of the Act provided that are not likely to cause financial detriment to the employees under the Agreement or result in substantial changes to the agreed instrument. In my view these provisions should be applied beneficially and broadly, but not such as to effectively re-write the proposed Agreement.
[21] In this case, although some of the potential undertakings purport to merely confirm the apparent intention of the parties and deal with obvious drafting issues (such as to accept the model clauses that operate under the Act), some of the undertakings would have the effect of substantially changing the terms of the Agreement and fall outside of the intended scope of s.190 of the Act. Indeed, as alluded to earlier, many of the proposed undertakings are written as express deletions and substitutions for provisions of the Agreement in relation to key conditions of employment. Given the circumstances applying here, I would not be inclined to exercise my discretion to accept the undertakings for the purposes of the approval of the Agreement. Rather, they should be considered by the parties as part of a new instrument.
[22] There is also no suggestion that the employer seeks to rely on the public interest circumstances as provided by s.189 of the Act to overcome any deficiencies with the NDT.
[23] In all of these circumstances, I am not persuaded that an extension for the lodgement of this application should be granted and I decline to do so. As a result the application must be refused.
[24] I would however encourage the parties, with the assistance of Mr Wallace, to revise their agreement and make a fresh application having regard to the preliminary findings in this matter and the requirements outlined above.
R. Wallace for Ankanith Pty Ltd T/as Taza Café and Bakehouse.
Hearings:
2010.
Adelaide;
February 19.
Written submissions:
2010
February 15 and 26.
COMMISSIONER
1 Item 2, Part 1, of Schedule 2
2 AG2009/15450 re: Renatone Pty Ltd t/as Caffe Buongiorno O’Hallaran Hill Staff Employment Agreement.
3 Section 193 of the Fair Work Act 2009
4 Item 2 of Sch. 7 to the Fair Work (Transitional Provisions and Consequential Amendments Act 2009.
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