Merivale to settle underpayment class action
Merivale will settle an underpayment class action that accused the company of neglecting to compensate workers for overtime hours.
The specifics of the settlement within the Adero Law class action remain confidential. However, it was revealed that there were over 14,000 potential group members, with 2,400 individuals already registered ahead of a mediation session scheduled for early June 2023.
The action was filed in March 2020 and claims Merivale, which owns venues including Mr Wong, Ivy, Establishment, Tank Stream Bar, Coogee Pavilion and The Newport, contravened section 45 of the Fair Work Act.
Merivale is accused of failing to meet conditions in the hospitality award stipulating how many hours the lead applicant was to work.
The award stipulates an average of 38 hours per week yet lead applicant Raymond Boulos asserts that he worked over 55 hours weekly.
At times, these hours extended beyond 11.5 hours in a single day or exceeded 10 hours per day for three consecutive days. The case accuses Merivale of neglecting to remunerate employees adequately for Sunday work, overtime, or holiday rates, including associated superannuation.
It also contends that Merivale violated section 50 of the Fair Work Act and the Merivale Employee Collective Agreement 2007 by failing to provide adequate compensation for additional hours worked.
In its defence, Merivale argued against the relief sought, citing its belief that its enterprise agreement was valid. However, this agreement was terminated in January 2019 following legal action by the United Voice union on behalf of two casual workers who claimed they were being deprived of significant earnings annually.
In April 2021, Justice Thomas Thawley ruled that the agreement was not validly approved. During an August hearing, Federal Court Justice Michael Lee addressed the class action's challenge to Merivale's assertion that it does not owe back wages due to its reliance on a now-invalid enterprise agreement.
Dr. Kristine Hanscombe KC, representing Boulos, emphasised to the judge that Merivale's beliefs were immaterial, citing precedents where employees retained minimum workplace rights despite misleading their employers.
Justice Lee deemed Boulos' challenge to Merivale's defence akin to a procedural matter, suggesting it be determined separately from the trial proceedings.
“I have to fashion a trial which deals with the resolution of arguable points. If your position is it’s unarguable and liable to summary disposal and that is going to save a huge amount of time,
then isn’t it better for that issue to be resolved as a separate question?” Justice Lee said.
Hanscombe said her client was reluctant for a separate dispute, saying the case should not undergo another interlocutory stoush.
“This case needs a trial. The last thing it needs is yet another interlocutory application,” she said.
Richard McHugh SC, representing Merivale, noted that his client's argument is unique, pointing out that the workplace authority approved the enterprise agreement, deeming it fair.
Justice Thawley found that the Workplace Authority exceeded its authority by initially declaring the agreement unfair, then reversing its decision after Merivale made changes.
Boulos worked as a pastry chef at Felix, a Merivale-operated French restaurant in Sydney, from October 2016 to March 2017.
Jonathan Jackson, 29th February 2024
