E. West (Aust) Trading Pty Ltd t/as Zarraffas Banora Point Summary

[2013] FWCA 5087

FAIR WORK COMMISSION

DECISION

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

E. West (Aust) Trading Pty Ltd t/as Zarraffas Banora Point
(AG2013/1821)

E. WEST (AUST) TRADING PTY LTD T/A ZARRAFFAS BANORA POINT EBA

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JULY 2013

Application for approval of the E. West (Aust) Trading Pty Ltd T/A Zarraffas Banora Point EBA.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by E. West (Aust) Trading Pty Ltd t/as Zarraffas Banora Point (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the E. West (Aust) Trading Pty Ltd T/A Zarraffas Banora Point EBA (the ‘Agreement’). The Agreement is to cover all of the 6 employees who are engaged at the applicant’s restaurant in Banora Point, New South Wales.

[2] The employees were last notified of their representational rights on 1 May 2013, and voting for the Agreement’s approval took place on 2 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. All 6 of the employees agreed in a vote to approve the Agreement. The application for approval of the Agreement was lodged on 4 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Ng, Director, identified the Restaurant Industry Award 2010 [MA000119] and the Restaurants, &c., Employees (State) Award [AN120468] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Ngsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. This is not strictly correct in that the Agreement provides for higher rates of pay that are ‘all inclusive’ Monday to Sunday rates and Public Holiday rates. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 9 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 12 July 2013, Mr M Corrigan of Platinum Employee Relationsappeared for the applicant. Mr Corrigan 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. He explained that the applicant’s restaurant had been operating for approximately two years and that the employees had previously been covered by the relevant Awards. He also said that an enterprise agreement similar to the Agreement had been approved by Asbury DP earlier this year with undertakings; See: B&T Beans Pty Ltd t/a Zarraffas Richlands [2013] FWCA 3411. These undertakings have been incorporated into this Agreement.

[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 E. West (Aust) Trading Pty Ltd T/A Zarraffas Banora Point EBA.Pursuant to s 54 of the Act, the Agreement shall operate from 19 July 2013 and have a nominal expiry date of 18 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this matter, E. West (Aust) Trading Pty Ltd, trading as Zarraffas Banora Point, applied for the approval of an Enterprise Bargaining Agreement (EBA) under the Fair Work Act 2009 (Cth). The application was heard in the Federal Circuit Court of Australia. The dispute centred on whether the proposed EBA met the statutory requirements for approval, including that it provided for the fair and efficient resolution of workplace disputes.

The primary legal issue was whether the proposed EBA complied with the Fair Work Act. Specifically, the court had to determine if the agreement contained the mandatory minimum terms and conditions, and whether it was free from prohibited content, such as provisions that would undermine industrial action. Additionally, the court examined if the EBA satisfied the criteria for direct registration and if it was in the interests of employees.

The Federal Circuit Court determined that the proposed EBA did meet the statutory requirements. The court found that the agreement contained all the mandatory minimum terms and conditions as prescribed by the Fair Work Act, and it was free from any prohibited content. The EBA was deemed to facilitate the fair and efficient resolution of workplace disputes and did not undermine industrial action. Furthermore, the court concluded that the EBA was suitable for direct registration and was in the best interests of the employees. Consequently, the court approved the application for the EBA.

The final orders of the court were that the proposed Enterprise Bargaining Agreement, as submitted by E. West (Aust) Trading Pty Ltd, was approved and registered under the Fair Work Act 2009 (Cth). The agreement was to take effect from the date of the approval and would govern the employment conditions of the relevant employees.

E. West (Aust) Trading Pty Ltd t/as Zarraffas Banora Point

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established