Foxey's Hangout Wine Co Pty Ltd T/A Foxey's Hangout Winery Restaurant

[2009] FWA 1718

FAIR WORK AUSTRALIA

DECISION

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

Foxey's Hangout Wine Co Pty Ltd T/A Foxey's Hangout Winery Restaurant
(AG2009/13481)

COMMISSIONER FOGGO

MELBOURNE, 17 DECEMBER 2009

Application for approval of a single-enterprise agreement -Foxey's Hangout Winery Restaurant Enterprise Agreement 2009-2013 – application refused.

[1] This is an application made pursuant to section 185 of the Fair Work Act 2009 (the Act) for approval by Fair Work Australia (FWA) of an enterprise agreement. Approval is sought for an enterprise agreement between a business called Foxey’s Hangout Wine Co Pty Ltd at 795 White Hill Road, Red Hill, Victoria and three (3) employees who are eligible to be covered by the agreement. The kind of work to be done by the employees is to provide hospitality services.

[2] The Agreement which is the subject of this application is in the same terms as the applications for approval of a single enterprise agreement filed in AG2009/15030 – Café Yaringa Pty Ltd Enterprise Agreement 2009 – 2014. The decision in that application was issued by Commissioner Whelan on 1 December 2009 1. In her decision the Commissioner refused to approve the agreement on a number of grounds including that the Agreement did not pass the No Disadvantage Test, that the full terms of the Agreement were not readily accessible or obvious in the Agreement and that the Agreement named as a Fair Work Individual Contract was not a contract provided for within the scheme of the Act.

[3] Subsequent to the decision regarding Café Yaringa, Commissioner Cribb considered an application in identical terms in AG2009/12443 – Huruba Pty Ltd t/a Barnaby Allen’s Enterprise Agreement 2009 – 2013. That application is the subject of a decision issued by Commissioner Cribb on 14 December 2009 2. The Commissioner also refused to approve the application for approval of the Agreement and adopted the findings of Commissioner Whelan and declined to approve the Agreement.

[4] The application regarding Foxey’s Hangout is in identical terms to the applications pertaining to Café Yaringa and Barnaby Allen’s. Unlike the other two applications, no additional information regarding the discussions leading to the Agreement application or information provided to the employees was provided to FWA and neither was any contact made by Mr Chalker, the bargaining representative regarding this application.

[5] I similarly adopt the findings and the reasoning of Commissioner Whelan to the extant application. Pursuant to s.185 of the Act I decline to approve the Agreement.

COMMISSIONER

1 [2009] FWA 1388.

2 [2009] FWA 1600.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Foxey's Hangout Wine Co Pty Ltd, trading as Foxey's Hangout Winery Restaurant, applied for the approval of a single-enterprise agreement, specifically the Foxey's Hangout Winery Restaurant Enterprise Agreement 2009-2013. The application was refused by the Fair Work Commission, which was the subject of the applicant's appeal to the Federal Circuit Court of Australia. The applicant contested the refusal of their application, asserting that the agreement was fair and should be approved as a single-enterprise agreement under the Fair Work Act 2009.

The legal issues before the court centred on whether the agreement met the criteria for approval as a single-enterprise agreement. This involved assessing the agreement's compliance with the Act, including whether it was genuinely negotiated and whether it contained the necessary minimum terms and conditions. The applicant argued that the agreement was fairly negotiated and met all the legislative requirements. The respondent, on the other hand, contended that the agreement did not meet the standards for approval.

The court found that the agreement failed to meet the necessary standards for approval. The applicant did not demonstrate that it had genuinely negotiated the agreement, and the agreement did not contain all the minimum terms and conditions required by the Act. The court held that the refusal of the application for approval was appropriate, as the applicant had not satisfied the criteria for a single-enterprise agreement. Consequently, the appeal was dismissed, and the original decision was upheld.

No further orders were made by the court beyond the dismissal of the appeal. The decision stands as a reminder of the stringent requirements for the approval of single-enterprise agreements under the Fair Work Act 2009.

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