C & S Pty Ltd T/A Hamilton Island Ice Cream Parlour
[2022] FWCA 314
•2 FEBRUARY 2022
| [2022] FWCA 314 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.222—Enterprise agreement
C & S Pty Ltd T/A Hamilton Island Ice Cream Parlour
(AG2021/8698)
Hamilton Island Ice-Cream Parlour Enterprise Agreement
| Fast food industry | |
| Commissioner Matheson | SYDNEY, 2 FEBRUARY 2022 |
Application for termination of the Hamilton Island Ice-Cream Parlour Enterprise Agreement.
C & S Pty Ltd T/A Hamilton Island Ice Cream Parlour (Applicant) made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Hamilton Island Ice-Cream Parlour Enterprise Agreement (Agreement).
The Agreement is a single enterprise agreement. It was approved by Commissioner Raffaelli on 31 August 2011.[1]
The nominal expiry date of the Agreement is 27 February 2014.
The Commission identified various concerns with the application and as such, the Applicant filed an amended ‘Form F24 – Application for termination of an enterprise agreement by agreement’ (Form F24) and supporting ‘Form 24A – Declaration in support of termination of an enterprise agreement’ (Form F24A). I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act. I also consider it appropriate in the circumstances allow an amendment to the application through the filing of the amended Form F24 and Form F24A.
Legislation
The relevant provisions of the Act are as follows:
“220 Employers may request employees to approve a proposed termination of an enterprise agreement
(1)An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.
(2)Before making the request, the employer must:
(a) take all reasonable steps to notify the employees of the following:
(i) the time and place at which the vote will occur;
(ii) the voting method that will be used; and
(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.
(3)Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
221 When termination of an enterprise agreement is agreed to
Single‑enterprise agreement
(1)If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2)The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.
224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”
Consideration – s.222 of the Act
Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?
The Applicant is the employer party named in the Agreement. Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement and that the Applicant has standing to make the Application.
Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?
The Application is accompanied by a Form F24A. I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the Act have been met.
Has the Application been made within the required timeframe per s.222(3)(a)?
S.222(3) of the Act sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.
The application was originally lodged on 2 December 2021 and the Applicant had indicated that employees agreed to terminate the agreement on 21 October 2021. However, for the reasons that follow, I find that 27 December 2021 was the date on which the termination was agreed to. Pursuant to s.586(b) of the Act, the irregularity of the premature application date will be waived and the application will be taken to be made on the date of the filing of the amended Form 24 and Form 24A, being 13 January 2022. While this is more than 14 days after the termination was agreed to, this application has been encumbered with complexity and the Applicant is a small business that has taken steps to address the concerns raised by the Commission, including by engaging a representative and reengaging with its workforce across the end of year and new year period. In all the circumstances, I consider it fair to extend the period for the making of the application to 13 January 2022.
Consideration – s.223 of the Act
I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.
S.220(2)
S.223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.
Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?
On 7 October 2021, the Applicant issued a memorandum to all employees advising of the time, place of vote and voting method and employees were reminded of this at a meeting on 14 October 2021. However, the documentation provided to employees accompanying the memorandum on 7 October 2021 inadvertently referred to the Hamilton Island Ice Cream Parlour Employee Collective Agreement, which was the industrial instrument that applied prior to the Agreement, and which is not the instrument that is the subject of this termination application. When the Commission raised concerns about this, the Applicant readministered the vote, providing updated information for employees to consider before doing so.
It is declared in the Form F24A that, on 24 December 2021, the Applicant notified employees by way of memorandum that a further vote would take place to approve the proposed termination of the Agreement. The Applicant filed a declaration made by one of its employees which stated “A memo was issued on 24 December 2021 notifying all staff to attend a meeting at the Hamilton Island Ice Cream Parlour (the Business) on Business’ premises on 27 December 2021 at 9.30am”. A copy of a memorandum was filed by the Applicant stating that the vote would take place on 27 December 2021 at 9:30am by a show of hands.
Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.
Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?
It is declared in the Form F24A that on 7 October 2021 employees were notified of the proposed termination of the enterprise agreement in a memorandum and were requested to attend a meeting and a subsequent vote to approve the termination. The memorandum set out that, if employees voted to approve the termination, they would be covered by the Fast Food Industry Award 2010 (Award). The memorandum also attached a document comparing current and proposed rates of pay against the rates of pay under the Award. However, as noted above, the Applicant had inadvertently provided employees with documentation referring to an older industrial instrument and not the Agreement. As such, on 24 December 2021, the Applicant wrote to employees to provide them with a link to the Agreement and an updated comparison document so employees could see the differences between the Award and the Agreement. The correspondence to employees also clarified that, if the Agreement is terminated, the Applicant would maintain current rates of pay and provide increases to rates in accordance with a document provided to them on 7 October 2021.
Having considered the materials before me, I am satisfied that the Applicant has given employees a reasonable opportunity to decide whether they want to approve the proposed termination.
I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b) of the Act.
Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?
S.223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.
Both the original and amended versions of the Form F24A declare that all four employees covered by the Agreement cast a valid vote and all four voted to approve the termination of the Agreement. However, as noted above, the Applicant had inadvertently provided employees with documentation referring to an older industrial instrument and not the Agreement in the lead up to the first vote on 7 October 2021. Notwithstanding this, the Applicant advised employees of the error and readministered the vote on 27 December 2021, providing an updated comparison document beforehand so employees could see the differences between the Award and the Agreement.
I am satisfied that the termination was agreed to when the second vote was administered on 27 December 2021.
Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.
Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)
In all the circumstances, I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.
Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)
The Applicant indicated in its Form F24 that there are not any employee organisations covered by the Agreement.
Conclusion
Based on the material before the Commission, I am satisfied that the requirements of s.223 of the Act have been met.
S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.
In accordance with s.224 of the Act, the termination will come into effect from 2 February 2022.
An Order to this effect PR737997 has been issued concurrently with this decision.
COMMISSIONER
[1] [[2011] FWAA 5934].
Printed by authority of the Commonwealth Government Printer
<AE887927 PR737996>
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