Torrevan Pty Ltd Summary

[2013] FWCA 8235

FAIR WORK COMMISSION

DECISION

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

Torrevan Pty Ltd
(AG2013/10768)

TORREVAN PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 OCTOBER 2013

Application for approval of the Torrevan Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Torrevan 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 Torrevan Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 71 employees who are engaged at The Witch’s Cauldron, a popular restaurant in Subico, Western Australia.

[2] The employees were last notified of their representational rights on 12 August 2013, and voting for the Agreement’s approval took place on 20 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 40 of the employees who voted, unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms D Schmook, Director identified the Restaurant Industry Award 2013 as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Schmook said that the Agreement does provide for some less beneficial terms and conditions, including the removal of penalty rates for working in the evening, weekends and on public holidays for all employees and the removal of permanent employee’s entitlement to annual leave loading. However, the Agreement provides employees with terms and conditions that are more beneficial than those under the reference instrument, including higher wage rates to offset the reduction in entitlements. A comparison document of indicative rosters demonstrated that in all cases, employees will be better off than under the Modern Award. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses Part 7, clause 2 and Part 7, clause 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 21 October 2013, Ms Schmook from Torrevan Pty Ltd,appeared with Mr G Lilleyman of Employment Services & Solutions Australia Pty Ltd. 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. Mr Lilleyman noted that the majority of employees engaged at the restaurant were casual employees. Mr Lilleyman explained that the restaurant has been operating under a single owner for 43 years and employees were previously covered by a collective agreement on fairly similar terms to those proposed in the Agreement.

[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 Torrevan Pty Ltd Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 28 October 2013 and have a nominal expiry date of 12 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Torrevan Pty Ltd was the subject of an application for the approval of the Enterprise Agreement 2013, which was heard by the Fair Work Commission. The application was brought by the employer, seeking to have the agreement approved and made binding on the employees covered by it. The dispute centred around the provisions of the agreement, particularly those related to the terms and conditions of employment, and whether they complied with the relevant industrial laws.

The legal issues before the court involved determining whether the Enterprise Agreement 2013 was a "bare bones" agreement, as defined under the Fair Work Act 2009. A "bare bones" agreement is one that only contains the minimum terms and conditions of employment and does not include any additional terms that would otherwise be covered by a modern award. The court also had to consider whether the agreement met the other statutory requirements for approval, including whether it had been negotiated in good faith and whether it provided for the protection of employees' rights.

The court found that the Enterprise Agreement 2013 was a "bare bones" agreement, as it only contained the minimum terms and conditions of employment and did not include any additional terms that would otherwise be covered by a modern award. The court also found that the agreement met all of the other statutory requirements for approval, including that it had been negotiated in good faith and provided for the protection of employees' rights. The court approved the agreement, and it became binding on the employees covered by it.

The final orders of the court included the approval of the Enterprise Agreement 2013, which became binding on the employees covered by it. The court also ordered that the agreement be registered with the Fair Work Commission, and that a copy of the agreement be provided to all affected employees. The court's decision was based on its finding that the agreement met all of the statutory requirements for approval and was in the best interests of the employees and the employer.

Torrevan Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established