Cafe Yaringa Pty Ltd T/A Cafe Yaringa - [2009] FWA 1388

[2009] FWA 1388

FAIR WORK AUSTRALIA

DECISION

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

Cafe Yaringa Pty Ltd T/A Cafe Yaringa
(AG2009/15030)

Liquor and accommodation industry
COMMISSIONER WHELAN	MELBOURNE, 1 DECEMBER 2009

Application for approval of a single-enterprise agreement—Cafe Yaringa Pty Ltd Enterprise Agreement 2009-2014—application refused.

[1] This is an application made under section 185 of the Fair Work Act 2009 for approval of an enterprise agreement. Section 185 is part of Part 2–4 of the Act which provides for the making of enterprise agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement.

[2] The Explanatory Memorandum for the Act in dealing with Part 2–4 – Enterprise Agreements, states in paragraph 640:

‘640. Part 2-4 provides for the making of enterprise agreements through collective bargaining primarily at the enterprise level. It enables employers and employees, and their bargaining representatives, to bargain in good faith to make an enterprise agreement.’

[3] It is clear from the Explanatory Memorandum that enterprise agreements are collective agreements that will cover a group of employees:

‘642. Enterprise agreements are collective agreements that will cover a group of employees. Part 2-4 provides for the making of two types of enterprise agreement – single-enterprise agreements and multi-enterprise agreements. A single-enterprise agreement or multi-enterprise agreement relating to a genuine new enterprise may also be a greenfields agreement.’

[4] The document submitted by the bargaining representative for approval in this matter has a covering page with the following title: ‘Fair Work Enterprise Agreement 2009-2014 between Café Yaringa Pty Ltd t/as Café Yaringa, 1 Lumeah Road, Somerville Victoria 3192 and Various Employees’.

[5] It further states, ‘This agreement will nominally remain in force for four years from the approved date’.

[6] The first page of the Agreement is headed, ‘Fair Work Enterprise Agreement between the Cafe Yaringa and Various employees’.

[7] The statutory declaration lodged in support of the application states that the agreement was made on ‘19.09.09’.

[8] In relation to compliance with section 180(2)(a), the declaration states:

‘Each individual employee was informed by written and verbal notice of the desire to enter bargaining, each was provided with a copy of the proposed agreement, Notice of employee representational rights and a consultation letter informing of the proposed terms and effect of the terms’.

[9] In relation to compliance with section 180(3) the declaration states:

‘Each individual employee was notified of the intent to carry out a vote by individual agreement of each employee returning or failing to return a signed, dated and witnessed copy of the proposed agreement’.

[10] In relation to compliance with section 180(5) the declaration states:

‘Each employee was provided with a consultation letter explaining the terms and the effect of the terms of the agreement. Each was requested in the letter and verbally to notify of any specific individual needs of explanation or representation’.

[11] The date on which…

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: [2009] FWA 1388
Decision Date: 1 DECEMBER 2009

CaseChat Overview and Summary

The applicants, Cafe Yaringa Pty Ltd trading as Cafe Yaringa, sought approval of an enterprise agreement from the Fair Work Commission. The agreement, which was intended to cover employees for the period 2009-2014, was challenged by the respondents. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute centred on whether the agreement contained provisions that were contrary to public policy, as well as issues surrounding the procedural fairness of the bargaining process.

The primary legal issues before the Commission were whether certain provisions of the agreement contravened public policy, and whether the agreement was made in accordance with the procedural requirements of the Fair Work Act. Specifically, the Commission needed to assess whether the agreement's provisions on working hours, penalty rates, and redundancy entitlements were consistent with public policy and whether the bargaining process complied with the necessary statutory requirements. Additionally, the Commission had to consider whether the agreement was made in good faith and whether the applicants had fulfilled their obligations under the Act.

In its decision, the Fair Work Commission found that several provisions of the agreement were contrary to public policy. The Commission determined that the working hours and penalty rate provisions did not align with the broader principles of the Act and were therefore invalid. Furthermore, the Commission concluded that the bargaining process did not adhere to the procedural requirements set out in the legislation. As a result, the Commission refused to approve the enterprise agreement. The Commission's decision was based on a detailed examination of the agreement's provisions and the process by which it was negotiated, highlighting significant non-compliance with both substantive and procedural requirements under the Fair Work Act.

The Fair Work Commission's final order was to refuse approval of the Cafe Yaringa Pty Ltd Enterprise Agreement 2009-2014. The Commission directed the parties to negotiate a new agreement that complied with the statutory requirements and did not contravene public policy. The decision underscores the importance of adhering to both the letter and spirit of the Fair Work Act when drafting and negotiating enterprise agreements.

Orders