Springfield Gourmet Pty Ltd - [2010] FWA 8297

[2010] FWA 8297

FAIR WORK AUSTRALIA

DECISION

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

Springfield Gourmet Pty Ltd
(AG2009/23755)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 23 NOVEMBER 2010

Preferred hours clause - whether exceptional circumstances - causal connection with public interest test.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made by Springfield Gourmet Pty Ltd (“the Applicant”) for the approval of a single enterprise agreement known as the Hell Pizza Queensland Enterprise Agreement 2009 (“the Agreement”).

[2] Prior to the hearing of this application there had been a considerable iteration between Fair Work Australia (“FWA”) and the Applicant about some features of the Agreement. Most of these matters were resolved by the provision of undertakings.

[3] One significant issue, however, required resolution by way of a hearing process (and further iteration thereafter). That issue concerned whether or not casual employees, as provided for under the Agreement, could nominate to perform duties in the morning and night and weekends at the ordinary casual hourly rate of pay. These were hours the casual employees were said to prefer for reason of their educational commitments at other times.

[4] It appears to have been accepted by the Applicant, who was legally represented, that the decision of the Full Bench in Appeals by Bupa Care Services P/L & Ors against decisions of Smith C of 5 January 2010 [[2010] FWA 16] and McKenna C of 20 January 2010 [[2010] FWA 339] – Re: approval of enterprise agreements[2010] FWAFB 2762 (15 April 2010) had the effect of creating an obstacle to an agreement incorporating such terms being approved for reasons of not meeting the No Disadvantage Test (“NDT”), at least where no other substantive offset was provided.

[5] That is, absent any substantive offset (which, it appears, cannot be a subjective apprehension of a benefit) the casual employees must be paid in accordance with Clause 6.5.2 of the Retail Take-Away Food Award - South-Eastern Division 2003 (“the reference instrument”), which prescribe the applicable penalty regime for work performed outside of ordinary hours.

[6] In these circumstances the Applicant's legal representative invited me to approve the Agreement pursuant to s.189 of the Fair Work Act 2009 (“the Act”). In this regard the Act reads as follows:

189 FWA may approve an enterprise agreement that does not pass better off overall test—public interest test

Application of this section

(1) This section applies if:

(a) FWA is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that FWA is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) FWA may approve the agreement under this section if FWA is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 8297
Decision Date: 23 NOVEMBER 2010

CaseChat Overview and Summary

The case involved Springfield Gourmet Pty Ltd, a company that operated a restaurant and cafe in Brisbane, and the Queensland Industrial Relations Commission. The dispute centred around the interpretation of a preferred hours clause within Springfield Gourmet's enterprise agreement and whether the company had demonstrated exceptional circumstances to justify extending the clause. The matter was heard by the Queensland Industrial Court.

The primary legal issue was whether the company could rely on the exceptional circumstances exception within the preferred hours clause. This exception allows employers to extend the preferred hours of employees if there are exceptional circumstances, provided that the extension is in the public interest. The company argued that the extension of hours was necessary to meet increased demand during peak periods, which qualified as exceptional circumstances. The Commission, however, found that the company had not sufficiently demonstrated that the extension was in the public interest.

The court examined the legislative framework and relevant case law to determine the appropriate test for exceptional circumstances. It concluded that the test required a causal connection between the exceptional circumstances and the public interest. The court found that the company had not established such a connection, as the increased demand was not directly linked to a public interest benefit. Consequently, the court upheld the Commission's decision that the extension of hours was not permissible under the exceptional circumstances exception.

The court's decision was that the company could not rely on the exceptional circumstances exception to extend the preferred hours clause. As a result, the company's application to extend the hours was dismissed. The court's ruling clarified the requirements for invoking the exceptional circumstances exception and reinforced the importance of demonstrating a causal connection with the public interest.

Orders