DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Peel Australia Pty Ltd T/A Ole Tapas Bar
(AG2017/2371)

OLE TAPAS BAR - ENTERPRISE AGREEMENT 2017

Restaurants
COMMISSIONER SAUNDERS	MELBOURNE, 17 JULY 2017

Application for approval of the Ole Tapas Bar - Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Ole Tapas Bar - Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Peel Australia Pty Ltd T/A Ole Tapas Bar. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the 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.

[3] 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.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 July 2017. The nominal expiry date of the Agreement is 1 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Peel Australia Pty Ltd, trading as Ole Tapas Bar, for approval of the Enterprise Agreement 2017. The applicants sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009, which would allow it to be applied to employees who were not already covered by it. The dispute centred around the procedural fairness of the agreement's certification process and whether certain provisions met the statutory requirements for registration.

The central legal issues were whether the enterprise agreement was certified in a procedurally fair manner and whether the agreement complied with the statutory requirements for registration. Specifically, the applicants argued that the agreement was procedurally unfair as the Fair Work Commission did not consider a relevant document during the certification process. Additionally, they contended that certain provisions of the agreement did not meet the statutory requirements, including provisions related to employee entitlements and leave.

The Fair Work Commission found that while the certification process was procedurally unfair due to the omission of a relevant document, the overall fairness of the process was not significantly impacted. The Commission considered that the parties had an opportunity to present their views and that the omitted document did not contain material that would have changed the outcome. Regarding the compliance of the agreement with statutory requirements, the Commission found that the provisions in question did meet the legislative standards and did not render the agreement invalid. Consequently, the Commission approved the enterprise agreement, acknowledging the procedural unfairness but finding it did not vitiate the overall fairness of the process.

The Fair Work Commission approved the enterprise agreement, notwithstanding the procedural unfairness in the certification process. The Commission determined that the overall fairness of the process was not compromised and that the statutory requirements for registration were met. The agreement was thus registered, and the applicants' application was successful.

Peel Australia Pty Ltd T/A Ole Tapas Bar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established