125365175 PL ATF HJHeatherton Family Trust T/A Hungry Jacks Heatherton

[2022] FWCA 4159

[2022] FWCA 4159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

125365175 PL ATF HJHeatherton Family Trust T/A Hungry Jacks Heatherton

(AG2022/4517)

HUNGRY JACK’S HEATHERTON EMPLOYEE COLLECTIVE AGREEMENT 2008

Fast food industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 28 NOVEMBER 2022

Application for termination of the Hungry Jack’s Heatherton Employee Collective Agreement 2008

1. On 27 October 2022, Hungry Jacks Heatherton applied to terminate the Hungry Jack’s Heatherton Employee Collective Agreement 2008 pursuant to section 225 of the Fair Work Act 2009 (Cth) (the Act).

1. The application was incomplete and was not accompanied by a Form F24C declaration. On 9 November 2022, this missing information was filed with the Commission.

1. The Agreement was made in accordance with Part 8 of the Workplace Relations Act 1996 (Cth) prior to the introduction of the Act. The application indicates that the Agreement nominally expired on 30 January 2013.

Background

1. The Agreement covers the Applicant and 47 employees. The Applicant is the sole employer covered by the Agreement. There are no employee organisations covered.

1. The application was supported by a statutory declaration of Andre Molinaro, Franchisee of Hungry Jacks Heatherton, dated 7 November 2022, a letter to employees dated 8 November 2022, and a document comparing the terms of the Agreement with the Fast Food Industry Award 2020 (the Award) and the effect of these terms on employees. A further statutory declaration made by Mr Molinaro was provided on 18 November 2022.

1. The material filed by the Applicant establishes that:

·   Upon termination, employees presently covered by the Agreement will be covered by the Award;

·   There are no entitlements in the Agreement that are more beneficial than the Award;

·   The Award will introduce penalty rates for hours worked over the weekend and late nights; and

·   If an employee is currently being paid above the applicable Award rate, their wages will remain unchanged.

Consideration

1. In relation to s.225 of the Act, I am satisfied that the Applicant is entitled to make this application and that the Agreement has passed its nominal expiry date.

1. In relation to s.226, I am required to terminate the Agreement if (a) I am satisfied that it is not contrary to the public interest to do so, and (b) if I consider it appropriate taking into account all the circumstances including:

(i)the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii)the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

1. In considering the material filed by the Applicant, I am satisfied that it is not contrary to the public interest to terminate the Agreement. On 18 November, a notice was distributed to all employees giving them an opportunity to provide their views to the Commission and none were received. Considering the Agreement expired almost 10 years ago, I am satisfied that the Award contains more beneficial terms and conditions than the Agreement, including penalty rates for late night and weekend shifts, and that this will benefit the Applicant’s younger workforce who often work these hours. The Applicant also declared that the few employees who may not benefit from the termination will continue to be paid their current wage and will not experience a reduction in pay.

1. I am satisfied that the requirements of s.226 of the Act have been met, and in all the circumstances, I consider that it is appropriate to terminate the Agreement.

1. The Agreement is terminated effective from today.

DEPUTY PRESIDENT

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