Andrew Robert Watt T/A Fgateenterprises Pty Ltd Summary

[2021] FWCA 6560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Andrew Robert Watt T/A Fgateenterprises Pty Ltd
(AG2021/7849)

FGATEENTERPRISES PTY LTD ENTERPRISE AGREEMENT 2013

Fast food industry
COMMISSIONER MCKINNON	MELBOURNE, 5 NOVEMBER 2021

Application for termination of the FGATEENTERPRISES Pty Ltd Enterprise Agreement 2013.

[1] FGATEENTERPRISES Pty Ltd has applied to terminate the FGATEENTERPRISES Pty Ltd Enterprise Agreement 2013 (the Agreement).The Agreement covers employees of the company who perform work in the fast food industry in Victoria.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement 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.”

[3] The Agreement expired on 26 August 2017. It covers and applies to 160 employees.

[4] The Commission sought the views of employees after the application was made, but none were received.

[5] The Agreement does not cover an employee organisation.

[6] The materials filed with the application satisfy me that termination of the Agreement would not be contrary to the public interest. The Agreement reached its nominal expiry date more than 4 years ago. Once the Agreement ceases to operate, employees’ terms and conditions of employment will become covered by the Fast Food Industry Award 2010 which establishes a safety net of fair minimum terms and conditions of employment for employees. This will mean that employees become entitled to penalty rates for night and weekend work, leading to an increase in take home pay. Public holiday penalty rates are slightly lower under the modern award than the Agreement, but the potential for detriment in this regard is outweighed by the likely improvements in terms and conditions of employment overall. In addition, the employer has undertaken to maintain rates of pay for employees that are currently higher than rates of pay under the modern award until they are better off overall.

[7] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Andrew Robert Watt, trading as Fgateenterprises Pty Ltd, applied for the termination of the FGATEENTERPRISES Pty Ltd Enterprise Agreement 2013. The applicant contended that the enterprise agreement had expired and that the employer and employees had agreed to terminate it. The Fair Work Commission was required to determine whether the enterprise agreement had indeed expired and whether the parties had reached an agreement to terminate it.

The court considered the evidence provided by the parties and the relevant provisions of the Fair Work Act 2009. The Commission found that the enterprise agreement had expired and that the parties had indeed reached an agreement to terminate it. The applicant had demonstrated that the agreement had reached its end date and that the parties had mutually agreed to terminate it. The Commission accepted that there was no dispute between the parties regarding the termination of the agreement.

The Fair Work Commission granted the application for the termination of the FGATEENTERPRISES Pty Ltd Enterprise Agreement 2013. The Commission found that the agreement had expired and that the parties had mutually agreed to terminate it. The Commission ordered that the enterprise agreement be terminated as of the date of the decision. The Fair Work Commission did not make any further orders in relation to the dispute.

Andrew Robert Watt T/A Fgateenterprises Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established