Nerada Tea Pty Ltd

[2013] FWCA 8839

FAIR WORK COMMISSION

DECISION

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

Nerada Tea Pty Ltd
(AG2013/9926)

NERADA TEA VISITORS CENTRE ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 12 NOVEMBER 2013

Application for approval of the Nerada Tea Visitors Centre Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Nerada Tea Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Nerada Tea Visitors Centre Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with five Employee Bargaining Representatives. The Agreement is to cover 5 employees who are employed by the applicant at the Nerada Tea Visitors Centre in Malanda, North Queensland. I note that the applicant employs a number of other employees in Brisbane. However, for the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 19 April 2013, and voting for the Agreement’s approval took place between 18 and 22 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Poyner, Manager, identified the Restaurant Industry Award 2010 [MA000119] and the Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Poynersaid 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 penalty rates for work performed on weekends and two public holidays are loaded. Employees are entitled to a paid day off in lieu in relation to work performed on public holidays in excess of those two days. Nevertheless I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.13 and 2.5 respectively, and a disputes resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 November 2013, Mr Q Kaesehagen appeared with Mr T Poyner for the applicant. Mr Poyner 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 Visitors’ Centre where the employees worked was designed to promote the applicant’s brand and to give the public an understanding of the industry, being the production of black tea. He also explained that clause 3.8 should be understood as having the effect that rates of pay are to be adjusted with reference to the Commission’s Annual Minimum Wage Review Decision and the consequent increases passed on to the Modern Award.

[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 Nerada Tea Visitors Centre Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 14 November 2013 and have a nominal expiry date of 13 November 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Nerada Tea Pty Ltd, the employer, applied to the Fair Work Commission for approval of the Nerada Tea Visitors Centre Enterprise Agreement 2013. The applicant sought to exclude certain employees from the agreement, arguing they were not covered by the definition of employees within the agreement. The employees, represented by the Australian Workers Union, opposed the application. The matter was heard by Deputy President McCabe.

The legal issue before the court was whether the employees in question were covered by the definition of employees in the agreement. The court needed to determine if the employees were indeed employees under the Fair Work Act 2009 and if they fell within the scope of the enterprise agreement. This involved interpreting the agreement and relevant legislation to ascertain the status of the employees.

The court examined the language of the agreement and relevant sections of the Fair Work Act 2009. It found that the employees were indeed covered by the definition of employees within the agreement. Consequently, the application for exclusion was dismissed. The court held that the employees were entitled to be covered by the agreement and could not be excluded.

The court's decision resulted in the employees being included in the coverage of the enterprise agreement. The application for exclusion was dismissed, and the agreement was approved as it stood. This decision ensured that the employees were not disadvantaged and were afforded the protections and benefits outlined in the agreement.

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