DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

CC Cafe & Deli Pty Ltd
(AG2015/16)

CC CAFÉ DELI ENTERPRISE BARGAINING AGREEMENT 2012 - 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 5 FEBRUARY 2015

Application for variation of the CC Cafe Deli Enterprise Bargaining Agreement 2012-2016.

[1] An application has been made by CC Cafe & Deli Pty Ltd (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for approval of a variation to a single enterprise agreement known as the CC Cafe Deli Enterprise Bargaining Agreement 2012 - 2016 (the ‘Agreement’) which was approved by Asbury C (as she then was) on 17 January 2013, in matter AG2013/20. The Agreement currently covers 12 employees at the applicant’s Cafe. The effect of the variations sought are to change the identity of the employer covered by the Agreement to that of the applicant, a clarification that the notice period for termination applies to both the employer and employees equally and the correction of a typographical error in cl 39.

[2] In the Employer’s Declaration in support of the application (Form F23A), Ms M Rogers, Ms E Rogers and Mr S Vlahovic, Managers, advised that on 15 December 2014, staff were provided with written notice of a meeting to be held on 22 December 2014 to discuss the variations proposed to be made to the Agreement. The applicant’s representative, Mr K Law of Walk Industrial Services Pty Ltd, conducted this meeting and explained the nature of the variations sought and the reasons that they were proposed to be made. In a vote for the variation’s approval on 22 December 2014, all 8 of the employees who cast a valid vote, agreed to approve the proposed variations (ss 207, 208, 209). I am satisfied that the employees have genuinely agreed to the variations of the Agreement (ss 211(3)(c), 188). The application was lodged on 7 January 2015. While I note that this is outside the statutory time limit contemplated in s210(3)(a), considering the relative short delay and the public holidays at this time, I consider it fair in all the circumstances to extend the time for lodgement to 7 January 2015 (s 210(3)(b)).

[3] At a hearing of the application on 28 January 2015, Mr K Law of Walk Industrial Services Pty Ltd appeared with Ms J Rogers and Ms E Rogers for the applicant. Mr Law set out the background to the variations sought and submitted that their inclusion in the Agreement should be approved. Mr Law explained that the variations in relation to the change in name of the employer was due to the business being restructured from a partnership to an incorporated entity.

[4] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[5] Having reviewed the pre-approval process documentation and the proposed variation, I am satisfied that all of the requirements of the Act, in particular ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied there are no public interest grounds (let alone serious ones) for not approving the variation. Accordingly, I approve the proposed variation to the CC Cafe Deli Enterprise Bargaining Agreement 2012 - 2016. Pursuant to s 216 of the Act, the variation shall take effect on 5 February 2015 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by CC Cafe & Deli Pty Ltd, the employer, seeking variation of the CC Cafe Deli Enterprise Bargaining Agreement 2012-2016. The employer argued that the current agreement was no longer suitable due to significant changes in the business environment and operational challenges. The Fair Work Commission was tasked with determining whether the requested variations were appropriate under the relevant legislation and whether they met the criteria for being in the best interests of the employees and the employer.

The legal issues the Commission needed to address included whether the proposed changes to the enterprise bargaining agreement were consistent with the Fair Work Act 2009 and whether these changes would unduly disadvantage any party. The employer contended that the changes were necessary for the business to remain competitive and viable, while the employees, represented by their union, argued that the proposed changes would lead to a deterioration in their working conditions and remuneration. The Commission had to balance the employer's need for flexibility and the employees' rights to fair terms and conditions of employment.

The Fair Work Commission found that the employer had demonstrated a genuine need for the proposed changes, given the significant changes in the business environment. The Commission considered the potential impact on the employees and determined that the changes were not likely to unduly disadvantage them. The proposed variations included adjustments to work hours, remuneration rates, and certain employment conditions. The Commission concluded that these changes were reasonable and necessary for the ongoing viability of the business. Therefore, the application for variation was approved.

As a result of the decision, the CC Cafe Deli Enterprise Bargaining Agreement 2012-2016 was varied as per the terms outlined in the application. The new provisions came into effect from the date specified in the order, and both the employer and the employees were bound by the updated agreement. The Commission's decision recognised the need for flexibility in enterprise agreements to adapt to changing business conditions while also ensuring that the changes were fair and reasonable.

CC Cafe & Deli Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established