Akiba Canberra Pty Ltd T/A Akiba Restaurant and Bar

[2023] FWCA 2249

[2023] FWCA 2249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Akiba Canberra Pty Ltd T/A Akiba Restaurant and Bar

(AG2023/2201)

AKIBA MULTI-ENTERPRISE AGREEMENT 2021

Restaurants
COMMISSIONER MCKINNON	SYDNEY, 2 AUGUST 2023

Application for termination of the Akiba Multi-Enterprise Agreement 2021

1. On 1 July 2023, Akiba Canberra Pty Ltd T/A Akiba Restaurant and Bar (Akiba) applied under s.222 of the Fair Work Act 2009 (Act) to terminate the Akiba Multi-Enterprise Agreement 2021 (Agreement). The Agreement has a nominal expiry date of 27 September 2025. Despite its name, the Agreement is a single enterprise agreement made between Akiba Canberra Pty Ltd and its employees working in Akiba Restaurant and Bar and Loquita Taqueria. The Agreement is also expressed to cover Sage Dining Room and Kokomo Joe’s in Canberra, although those venues have since closed.

1. The application is made in connection with changes in the labour market and customer demand. In short, the parties to the Agreement have decided that reintroducing weekend penalty rates for work on weekends in accordance with the Restaurant Industry Award 2020 will help to incentivise weekend work. On my own review, employees are likely to be better off overall by reverting to the modern award.

1. I am satisfied that a request was made to employees to approve the proposed termination of the Agreement by voting for it, after taking reasonable steps to notify the employees of the time and place at which the vote would occur, and the voting method that would be used, and giving employees a reasonable opportunity to decide whether they want to approve the proposed termination.

1. I am satisfied that the termination was agreed to on 24 June 2023, by which time a majority of employees who participated in the vote approved termination of the Agreement.

1. The application to terminate the Agreement was made on 1 July 2023, within 14 days after termination of the Agreement was agreed to. There are no other reasonable grounds for believing that the employees have not agreed to the termination. No union or other employee organisation is covered by the Agreement.

1. In the circumstances, I consider that it is appropriate to approve the termination of the Agreement.

1. One further matter requires comment. The application to terminate the Agreement is made on the premise that the Agreement also covers another entity, Wilma & The Pearl Pty Ltd, and its employees. It is not apparent from the terms of the Agreement why this might be assumed to be so. There is no reference to the entity or its employees in the coverage clause of the Agreement, and no apparent basis for concluding that the entity is covered by the Agreement by reason of a transfer of business. Accordingly, it is not necessary to terminate the Agreement so far as it covers Wilma & The Pearl Pty Ltd. While employees of that entity appear to have participated in the vote to approve termination of the Agreement, their exclusion from the voting results does not affect the overall outcome, which remains that a majority of employees are in support of termination of the Agreement.

1. The Agreement is terminated with effect from today.

COMMISSIONER

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