CC Cafe & Deli Pty Ltd

[2015] FWCA 833

[2015] FWCA 833

FAIR WORK COMMISSION

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

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