Benjamin Janover

[2019] FWCA 1735

[2019] FWCA 1735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Benjamin Janover
(AG2019/114)

FARM CAFE COLLECTIVE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 18 MARCH 2019

Application for termination of the Farm Cafe Collective Agreement.

[1] On 20 January 2019, Mr Benjamin Janover filed an application (the Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Farm Cafe Collective Agreement (the Agreement). Mr Janover also filed a statutory declaration in support of the Application.

[2] The Agreement is a collective agreement-based transitional instrument. Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) states that Subdivision D of Division 7 of Part 2-4 of the Act applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. To avoid any confusion, any requirement in relation to the correct form to be used under the Fair Work Commission Rules 2013 is waived. I am satisfied the application as submitted is satisfactory and accompanied by appropriate supporting documentation.

[3] The Agreement was lodged with the Workplace Authority on 27 July 2007. On 10 November 2008, an undertaking was received, and ultimately accepted by, the Workplace Authority to vary the Agreement. I am satisfied, pursuant to clause 3 of the Agreement, that its nominal expiry date of no later than the fifth anniversary after the date on which it was lodged has passed.

[4] On 24 January 2019, Senior Deputy President Hamberger issued directions to the parties which noted if any party objected to the application, they were to advise his chambers by close of business on 14 February 2019. The employer was directed to provide a copy of the directions to all employees covered by the Agreement by close of business on 31 January 2019. Following correspondence with Mr Janover, the Senior Deputy President issued further directions on 1 February 2019, directing the employer to provide a copy of the Application and Mr Janover’s supporting statutory declaration to all employees by close of business on 5 February 2019.

[5] On 14 February 2019, Mr Michael Belchamber sent an email to the Commission purporting to attach a letter from himself and five other employees in support of the Application. On the same day, the employer sent email correspondence to the Senior Deputy President’s chambers notifying its objection to the Application. Later that same afternoon, Mr Janover filed further material in support of the Application. The matter was subsequently allocated to my chambers.

[6] The matter was listed for a conference before me on Monday 4 March 2019. However, on Friday 1 March 2019, Ms Carina Watson and Mr Mark Robertson, the co-owners (and Directors) of The Farm Cafe, wrote to my chambers advising of the employer’s withdrawal of its objection to the Application. They requested the conference be vacated and advised they intended to begin providing employees with wages in accordance with the Restaurant Industry Award 2010 (the Award) from Monday 4 March 2019. As a result, I determined the conference would be cancelled.

The legislation

[7] The Act relevantly provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Section 225 of the Act

[8] I am satisfied the requirements of s.225 of the Act are met. As outlined at [3] above, the Agreement has passed its nominal expiry date and pursuant to s.225(b), Mr Janover, an employee covered by the Agreement, has applied to the Commission for the termination of the Agreement.

Section 226(a) of the Act – Public Interest

[9] As regards s.226(a) of the Act and the manner in which the public interest is to be assessed, the Full Bench in Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd 1(Aurizon)cited various passages from the Full Bench of the Australian Industrial Relations Commission’s decision in Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 20002(Kellogg) which had concerned the corresponding, but not identical, provision from the Workplace Relations Act 1996. Relevantly, these passages included:

“The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them…” 3

[10] It is also relevant to highlight the Full Bench in Aurizon concluded that it cannot be expected that the terms and conditions of an agreement will continue unaltered in perpetuity after it has passed its expiry date. This is because the Act contemplates the terms and conditions of an agreement may be altered by making a new agreement or by terminating the existing agreement. 4

[11] As was also recognised in Aurizon, s.226 of the Act is not limited to circumstances in which an agreement no longer applies to any employee. The Act clearly contemplates an agreement that still applies to employees being terminated and prescribes a safety net upon termination in such circumstances. The prescribed safety net is not a prior agreement and nor are undertakings mandatory. Rather, the prescribed safety net is the relevant modern award created during the Award Modernisation process and the National Employment Standards (NES). In this case, the relevant modern award is the Restaurant Industry Award 2010.

[12] In this application, the termination of the Agreement would not lead to an absence of award coverage for the employees. The Award provides for “proper industrial standards” within the meaning given to that term by Kellogg.

[13] In circumstances where there was no material before me suggesting otherwise, I am satisfied it is not contrary to the public interest to terminate the Agreement.

Section 226(b) of the Act – Appropriateness

[14] The approach to assessing appropriateness by taking into account all the circumstances, as enunciated by the Full Bench in Aurizon, is to have reference to the construction of s.226 and the contextual matters that bear upon that construction, as well as giving specific consideration to the matters identified in ss. 226(b)(i) and (ii):

“All of the circumstances also need to be taken into account in considering whether termination of the agreements is appropriate. In particular the views of employers and employees covered by the agreement, their circumstances, and the impact of termination need to be taken into account. The requirement in s. 226(b) to take into account all of the circumstances including those set out in s. 226(b)(i) and (ii) is a requirement to take the matters into account and to give them due weight in assessing whether it is appropriate to terminate an enterprise agreement. In assessing appropriateness by taking into account all of the circumstances, we approached the task by reference to the construction of s. 226 and the contextual matters that bear upon that construction dealt with earlier as well as giving specific consideration to the matters identified in s . 226(b)(i) and (ii).” 5 (Reference omitted)

[15] I intend to adopt this approach.

[16] Mr Mark Robertson and Ms Carina Watson are Directors of Hays Events Pty Ltd, the employer. On 1 March 2019, they advised of the withdrawal of the employer’s objection to the Application. They noted that the employer intended to provide employees with wages in accordance with the Award from 4 March 2019. There were no further submissions made as to the effect of terminating the Agreement on the employer.

[17] Mr Janover, an employee, filed the Application to terminate the Agreement. Clearly, he supports the Agreement being terminated. In response to directions issued by the Commission, an email was also received from Mr Michael Belchamber which purported to attach a letter from himself and five other employees in support of the Application. They noted that under the Agreement they do not receive public holiday or weekend penalty rates, overtime or late shift penalty rates. It was submitted terminating the Agreement would improve their lives and the workplace in the future.

[18] There is no employee organisation covered by the Agreement.

Conclusion

[19] The employer does not object to the Application and the employees who filed material support termination of the Agreement. Having regard to the terms of the Agreement in their entirety and the material before me, I am satisfied it is appropriate in all the circumstances to terminate the Agreement. As outlined in [13] above, I am also satisfied it is not contrary to the public interest to terminate the Agreement.

[20] Further to the above findings, the Act requires that I terminate the Agreement. 6 In accordance with s.227 of the Act, the termination will take effect from 18 March 2019.

DEPUTY PRESIDENT

 1   [2015] FWCFB 540.

 2 (2005) 139 IR 34.

 3   Ibid at 40.

 4   [2015] FWCFB 540 at [176].

 5 Ibid at [167].

 6   Fair Work Act 2009 (Cth), s.226.

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