Coffee Crowd Adelaide Pty Ltd Summary

[2013] FWCA 8426

FAIR WORK COMMISSION

DECISION

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

Coffee Crowd Adelaide Pty Ltd
(AG2013/9820)

COFFEE CROWD PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Coffee Crowd Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Coffee Crowd Adelaide Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Coffee Crowd Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 13 employees who are engaged at the applicant’s coffee shop in Adelaide.

[2] The employees were last notified of their representational rights on 18 August 2013, and voting for the Agreement’s approval took place between 4 and 6 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Galantomos, Owner, identified the Restaurant Industry Award 2010 [MA000119] and the Delicatessens, Canteens, Unlicensed Cafes and Restaurants Etc. Award [AN150170] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Galantomossaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of annual leave loading, the removal of a number of allowances and less generous penalty rates for Saturdays, Sundays and public holidays. However, annual leave loading and a laundry allowance have been ‘factored’ into higher rates of pay and the Agreement also provides for a reasonable number of complimentary hot beverages and staff can purchase meals during each shift for $5.00. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 5 respectively, and a disputes resolution procedure at clause 4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 24 October 2013, Ms H Ellis, Solicitor,appeared for the applicant. Ms Ellis outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that the wage comparisons made by the applicant and attached to its Form F17 were based on sample rosters. This analysis showed that permanent employees would be better off by between 1.6 and 5.8% per week and casual employees would be better off by between 1 and 7.6% per week when compared to the Award.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Coffee Crowd Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 31 October 2013 and have a nominal expiry date of 30 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Coffee Crowd Adelaide Pty Ltd was the applicant in a proceeding brought in the Fair Work Commission, seeking approval of the Coffee Crowd Pty Ltd Enterprise Agreement 2013. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The applicant argued that the agreement was made in good faith and provided for the terms and conditions of employment of the relevant employees.

The primary legal issue before the Commission was whether the agreement satisfied the "better off overall test" stipulated in section 180 of the Act. This test requires that the terms and conditions of employment in the agreement be at least as favourable as the applicable awards or the terms and conditions of employment that would have applied but for the agreement. The Commission also needed to consider whether the agreement had been made in good faith, as required by section 179 of the Act.

In determining the matter, the Commission examined the evidence provided by the applicant and considered the relevant statutory provisions. The Commission found that the agreement met the better off overall test and that it had been made in good faith. The applicant had demonstrated that the agreement provided for terms and conditions of employment that were at least as favourable as those in the applicable awards or that would have applied but for the agreement. Furthermore, the Commission was satisfied that the agreement was negotiated in good faith, as evidenced by the process of consultation and negotiation between the parties.

As a result, the Commission approved the Coffee Crowd Pty Ltd Enterprise Agreement 2013. The decision underscores the importance of meeting the statutory requirements for approval of an enterprise agreement, including satisfying the better off overall test and demonstrating good faith in the negotiation process. This case serves as a useful reminder for employers and employees of the legal framework governing the approval of enterprise agreements in Australia.

Coffee Crowd Adelaide Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established