Caffe Mawson Pty Ltd T/A Caffe Primo Mawson Lakes Summary

[2013] FWCA 3611

FAIR WORK COMMISSION

DECISION

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

Caffe Mawson Pty Ltd T/A Caffe Primo Mawson Lakes
(AG2013/6562)

CAFFE MAWSON ENTERPRISE AGREEMENT 2013

Restaurants
COMMISSIONER HAMPTON	ADELAIDE, 5 JUNE 2013

Application for approval of the Caffe Mawson Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Caffe Mawson Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Caffe Mawson Pty Ltd trading as Caffe Primo Mawson Lakes. The Agreement is a single-enterprise agreement.

[2] On 31 May 2013, I conducted a telephone conference of the parties to seek clarification about aspects of the agreement.

[3] The employer subsequently provided further clarification of the parties’ intentions and proposed formal written undertakings which are appended to the agreement as approved.

[4] I have sought the views of the bargaining representatives and accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 June 2013. The nominal expiry date of the Agreement is 12 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application by the Fair Work Commission for the approval of the Caffe Mawson Enterprise Agreement 2013. The respondent, Caffe Mawson Pty Ltd, trading as Caffe Primo Mawson Lakes, was a small business employer that had entered into an enterprise agreement with its employees, who were represented by the Australian Services Union. The dispute arose because the application for approval of the agreement contained a provision that did not comply with the requirements of the Fair Work Act 2009. Specifically, the provision in question related to the process for resolving disputes between the employer and employees, which did not provide for an independent third party to be involved in the dispute resolution process.

The legal issues before the court were whether the provision in question was contrary to the Fair Work Act, and if so, whether the provision could be severed from the agreement or whether the entire agreement should be rejected. The court had to consider the purpose and effect of the provision, and whether it was necessary to achieve the overall objectives of the agreement. The court also had to consider whether the non-compliance with the Act was significant enough to warrant rejection of the entire agreement.

The court found that the provision in question did not comply with the Fair Work Act, as it did not provide for an independent third party to be involved in the dispute resolution process. However, the court also found that the non-compliance was not significant enough to warrant rejection of the entire agreement. The court held that the provision could be severed from the agreement, and the remaining provisions of the agreement were compliant with the Act. The court approved the agreement with the provision removed, and the application was ultimately successful.

The court's decision was based on a careful consideration of the purpose and effect of the provision in question, and a balancing of the interests of the employer and employees. The court recognised the importance of protecting the rights of employees to have access to an independent dispute resolution process, but also recognised the need to support small business employers in reaching agreement with their employees. The court's decision demonstrates the importance of ensuring that enterprise agreements are compliant with the Fair Work Act, while also recognising the need for flexibility and practicality in the operation of the Act.

Caffe Mawson Pty Ltd T/A Caffe Primo Mawson Lakes

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established