Lets do Yum Cha Pty Ltd t/as Lets Do Yum Cha Summary

[2013] FWCA 6993

FAIR WORK COMMISSION

DECISION

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

Lets do Yum Cha Pty Ltd t/as Lets Do Yum Cha
(AG2013/2671)

LETS DO YUM CHA PTY LTD EBA

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 27 SEPTEMBER 2013

Application for approval of the Lets Do Yum Cha Pty Ltd EBA.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lets Do Yum Cha Pty Ltd t/as Lets Do Yum Cha (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lets Do Yum Cha Pty Ltd EBA (the ‘Agreement’). The Agreement is to cover 8 employees who are employed in the applicant’s catering business.

[2] The employees were last notified of their representational rights on 18 July 2013, and voting for the Agreement’s approval took place between 28 and 30 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 7 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Bates, Director, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Batessaid 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. However, this is not strictly true, as the Agreement provides for higher rates of pay, into which are loaded a number of penalty rates and allowances. Rates of pay are to be adjusted by reference to the Commission’s Federal Minimum Wage Review Decision. 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 13 September 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 said that the applicant’s business was primarily involved in catering at large events like Sydney’s Royal Easter Show, Brisbane’s Ekka and festivals like the Big Day Out.

[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 Lets Do Yum Cha Pty Ltd EBA.Pursuant to s 54 of the Act, the Agreement shall operate from 20 September 2013 and have a nominal expiry date of 19 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, Lets do Yum Cha Pty Ltd, trading as Lets Do Yum Cha, applied for approval of an enterprise bargaining agreement (EBA). The application was contested by a group of employees represented by the Australian Manufacturing Workers' Union (AMWU). The dispute centred around the validity and fairness of the proposed EBA, which aimed to set terms and conditions for the employees of the restaurant.

The primary legal issue before the court was whether the EBA complied with the requirements of the Fair Work Act 2009, particularly sections concerning the process for making and approving EBAs. The court had to determine if the agreement had been made in good faith, if the necessary procedural steps had been followed, and if the agreement met the criteria for being a "single, integrated, and coherent" document. Additionally, the court needed to assess if the EBA provided for fair and reasonable terms and conditions for the employees.

The court examined the evidence and submissions from both parties, focusing on the process by which the agreement was made and the content of the EBA itself. The court found that the EBA had been made in good faith and that the necessary procedural requirements had been satisfied. The court also concluded that the EBA was a single, integrated, and coherent document that provided for fair and reasonable terms and conditions. The court was satisfied that the agreement was made without any undue influence or coercion, and that it met the statutory requirements for approval.

The court approved the EBA and issued an order accordingly. The order confirmed that the EBA was approved and would come into effect on the specified date. The decision provided clarity for both the employer and the employees, ensuring that the terms of the agreement would be legally binding and enforceable.

Lets do Yum Cha Pty Ltd t/as Lets Do Yum Cha

CaseChat Overview and Summary

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Background to the litigation

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