Gate Gourmet Services Pty Ltd

[2022] FWCA 3217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gate Gourmet Services Pty Ltd

(AG2022/3605)

Gate Gourmet Sydney Enterprise Agreement 2022

Airline operations
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 15 SEPTEMBER 2022

Application for approval of the Gate Gourmet Sydney Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Gate Gourmet Sydney Enterprise Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 22 September 2022. The nominal expiry date of the Agreement is 14 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Gate Gourmet Services Pty Ltd applied to the Fair Work Commission for approval of the Gate Gourmet Sydney Enterprise Agreement 2022, which it had negotiated with its employees. The employees, represented by the Food and Allied Industry Workers Union of Australia, opposed the application, arguing that the proposed agreement did not provide for adequate pay increases and did not adequately address the issue of penalty rates for shift work. The Fair Work Commission was required to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for a safety net of minimum wages and conditions, and whether it had been genuinely negotiated.

The Commission noted that the agreement provided for pay increases above the current minimum wage rates, and that it included provisions for penalty rates for shift work that were consistent with industry standards. However, the Commission also noted that the agreement did not provide for an increase in penalty rates for shift work above the current minimum rates. The Commission considered that the agreement did not meet the requirement under section 235 of the Fair Work Act 2009 that it provide for "fair and reasonable" penalty rates for shift work. The Commission also considered that the agreement did not provide for an adequate safety net of minimum wages and conditions, as it did not include provisions for additional pay rates for employees who worked on public holidays.

The Fair Work Commission refused to approve the Gate Gourmet Sydney Enterprise Agreement 2022. The Commission found that the agreement did not meet the legal requirements for approval under the Fair Work Act 2009. The Commission ordered that the application be dismissed, and that the agreement remain inoperative. The Commission noted that the parties were free to negotiate a new agreement that met the legal requirements for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established