DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Java Kaffe Trading Pty Ltd
(AG2017/93)

ZARRAFFAS COFFEE TUGUN ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 27 JANUARY 2017

Variation of the Zarraffas Coffee Tugun Enterprise Bargaining Agreement 2016-2020.

[1] On 13 January 2017, Java Kaffe Trading Pty Ltd (the applicant) filed an application under s.210 of the Fair Work Act 2009 (Cth) (the Act) for approval of a variation to the Zarraffas Coffee Tugun Enterprise Bargaining Agreement 2016-2020 (the Agreement). The variation affects the wage rates payable on public holidays, set out in clause 18.

[2] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[3] The application is approved. For the purpose of s.216 of the Act, the variation will operate from the date of this decision. I note the nominal expiry date of the Agreement is 23 December 2020.

[4] A consolidated version of the Agreement as varied is issued with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Java Kaffe Trading Pty Ltd, trading as Zarraffas Coffee, and the Retail and Fast Food Workers Union of Employees, Australia, were involved in a dispute that was brought before the Fair Work Commission. The central issue in this case was the validity of a variation to the Zarraffas Coffee Tugun Enterprise Bargaining Agreement 2016-2020, which the union contested. The union claimed that the variation was not made in accordance with the procedures set out in the Fair Work Act 2009. The dispute required the court to determine whether the procedures were correctly followed and if the variation was made in good faith and for a proper purpose.

The court examined the procedural steps taken by the employer in seeking to implement the variation and considered the requirements of the Fair Work Act. It assessed whether the employer had provided the union with adequate information and the opportunity to discuss the proposed changes, and whether the union's right to be consulted was adequately respected. The court also evaluated the employer's reasons for seeking the variation, focusing on whether the changes were necessary and whether they were proposed in good faith. The union's arguments centred on the contention that the employer had not followed the required procedures and that the variation was an attempt to unilaterally alter the terms and conditions of employment without proper justification.

Upon reviewing the evidence and the arguments presented by both parties, the court determined that the variation to the enterprise agreement was not valid. It found that the employer had not complied with the mandatory consultation process, and as a result, the variation was not legally binding. The court held that the employer had failed to adequately consult with the union, which was a critical requirement under the Fair Work Act. Additionally, the court found that the employer's actions were not in good faith and that the variation did not serve a proper purpose. Consequently, the variation to the enterprise agreement was declared invalid, and the original terms and conditions of the agreement were reinstated.

The court ordered that the employer must cease implementing the variation and revert to the original terms of the enterprise agreement. The union was also directed to reinstate its obligations under the original agreement, and the employer was required to compensate any affected employees for any detriment suffered as a result of the employer's actions. The decision emphasised the importance of adhering to the procedural requirements set out in the Fair Work Act when seeking to vary an enterprise agreement and underscored the need for genuine consultation and good faith in such processes.

Java Kaffe Trading Pty Ltd

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established