Taka's Kitchen (Fremantle) Pty Ltd

[2014] FWCA 753

FAIR WORK COMMISSION

DECISION

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

Taka's Kitchen (Fremantle) Pty Ltd
(AG2013/12827)

TAKA'S KITCHEN (FREMANTLE) PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 FEBRUARY 2014

Application for approval of the Taka's Kitchen (Fremantle) Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Taka’s Kitchen (Fremantle) 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 Taka’s Kitchen (Fremantle) Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 8 employees who are employed at the applicant’s restaurant in Fremantle, Western Australia.

[2] The employees were last notified of their representational rights on 4 September 2013, and voting for the Agreement’s approval took place between 10 and 12 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 7 of the 8 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Nukumizu, Company Director identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Nukumizusaid 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. The Agreement provides for higher rates of pay. Base rates of pay under the Agreement are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions, although where an employee’s ordinary rate of pay is higher than that prescribed in the Agreement, that increase may be absorbed. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Part 7, clauses 2 and 3 respectively, and a disputes resolution procedure at Part 7, clause 1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 22 January 2014, Mr G Lilleyman of Employment Services & Solutions Australia Pty Ltd,appeared with Ms A Nukumizu for the applicant. The application was heard in conjunction with two other applications in relation to the approval of enterprise agreements covering restaurants in and around Perth, Western Australia; See: Taka’s Kitchen Pty Ltd [2014] FWCA 756 and Taka’s Kitchen (Barrack) Pty Ltd [2014] FWCA 757. Mr Lilleyman 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 explained that the rates of pay between the enterprise agreements differed slightly due to different rosters at each location, but they were essentially in the same terms. He noted that the rates of pay were 30-40c above those under the reference instruments. Ms Nukumizu said that employees do not generally interchange between the three restaurants.

[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 Taka’s Kitchen (Fremantle) Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 January 2014 and have a nominal expiry date of 1 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Taka's Kitchen (Fremantle) Pty Ltd, the respondent in this case, applied for approval of its Enterprise Agreement 2013. The applicant, represented by the Fair Work Commission, opposed the approval on the grounds that the agreement contained provisions that were not compliant with the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues the court had to address were whether certain provisions in the Enterprise Agreement 2013 contravened the provisions of the Fair Work Act. Specifically, the court examined whether the agreement's provisions on employee entitlements, working conditions, and dispute resolution mechanisms were consistent with the statutory requirements. The court also considered whether the agreement had been made in good faith and whether the process of its formation was fair.

The court found that while most of the provisions in the Enterprise Agreement 2013 were compliant with the Fair Work Act, there were specific clauses that needed to be amended to ensure compliance. The court identified issues with the agreement's provisions on overtime pay and the dispute resolution process, which it deemed to be in conflict with the statutory provisions. Consequently, the court decided that the agreement could not be approved in its current form. The court ordered the parties to negotiate and amend the contentious provisions within a specified timeframe to align with the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established