Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch

Burswood Catering and Entertainment Pty Ltd, the appellant, sought relief from an industrial award made by the Commission in Court Session, which had been challenged by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch, the respondent. The dispute arose due to the appellant's registration shortly after a previous agreement between a related company, BRML, and the respondent had been signed, resulting in inequities to employees. The appellant argued that the Commission was in error by making a new award and sought to have the corporate veil lifted to infer that the new company was created to avoid the terms and conditions agreed upon.

The central legal issue before the court was whether the corporate veil should be lifted to apply wage fixing Principle 10 in this case, given that the appellant was registered shortly after the agreement between BRML and the respondent. The court had to determine if the new company was created to circumvent the terms of the existing agreement, and if so, whether it was appropriate to disregard the separate legal personality of the companies involved. The court also needed to consider whether the Commission in Court Session was correct in making a new award, given the circumstances of the appellant's registration.

The court found that the Commission in Court Session had erred in making the new award, as it had not properly considered the implications of the appellant's registration and the potential avoidance of the terms and conditions agreed upon. The court held that the corporate veil should not be lifted in this case, as there was insufficient evidence to infer that the new company was created to circumvent the existing agreement. The court concluded that the new award should not be made, and the original agreement between BRML and the respondent should remain in place.

Accordingly, the appeal was dismissed, and the original decision of the Commission in Court Session was overturned. The court's decision reinforces the importance of considering the implications of corporate structures when making industrial awards and emphasises the need for careful analysis of the circumstances surrounding the registration of new companies in the context of existing agreements.