Cantina Logistics Pty Ltd

[2021] FWCA 1722

[2021] FWCA 1722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Cantina Logistics Pty Ltd
(AG2021/4406)

CANTINA LOGISTICS PTY LTD – ENTERPRISE AGREEMENT 2017

Restaurants
DEPUTY PRESIDENT BULL	SYDNEY, 14 APRIL 2021

Application for termination of the Cantina Logistics Pty Ltd - Enterprise Agreement 2017 – Agreement terminated.

[1] On 26 March 2021, an application was made pursuant to s.225 of the Fair Work Act 2009 (The Act) for termination of the Cantina Logistics Pty Ltd – Enterprise Agreement 2017 1 (the Agreement). The application was made by Cantina Logistics Pty Ltd (Cantina Logistics) who are defined as the employer in the Agreement.

[2] Termination of an enterprise agreement after its nominal expiry date is dealt with at ss. 225 -227 of the Act. Section 225 states 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.”

(My underline)

[3] I am satisfied that Cantina Logistics Pty Ltd as the employer covered by the Agreement has standing to make the termination application as per s.225(a) of the Act.

[4] The Agreement has passed its nominal expiry date of 1 March 2021, as is also required under s.225 of the Act.

[5] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate is made:

“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.”

[6] The application was accompanied by a Form F24C – Employer declaration declared by Fergus Sillar, a Director of the applicant employer. 2 Mr Sillar submitted that he was not aware of any matters arising from the termination of the Agreement that would be contrary to the public interest, which he understood to broadly include matters outside of the employer and employee’s direct interests.

[7] It was submitted by Mr Sillar that while the base rates (which are loaded rates) in the Agreement are sufficient for the purposes of s.206 of the Act (concerning the base rate of pay not being less than the modern award rate), due to the passage of time, the rates in the Agreement are less than what would apply on weekends and public holidays under the relevant modern award, that being the Fast Food Industry Award 2020 (the Award). 3

[8] I note that in the Form F17 – Employer’s Statutory Declaration, 4 filed with the initial approval application, the relevant reference instrument for the purposes of the Better Off Overall Test (the BOOT) is described as the Restaurant Industry Award 2010.

[9] Regarding the effects on the employer, Mr Sillar stated that Cantina Logistics employs a number of staff who perform work at the Guzman y Gomez outlet in Byron Bay, and staff at the outlet are currently employed by both Cantina Logistics and Byron Bay Cantina Pty Ltd (BB Cantina), an associated entity of Cantina Logistics. Mr Sillar submitted that the Agreement only covers employees of Cantina Logistics, and the BB Cantina employees are covered by the Fast Food Industry Award. It was submitted by Mr Sillar that if the Agreement is terminated it will result in business synergy and a reduction of complexity by consolidating all employees onto the same employment arrangements.

[10] In relation to ascertaining employee view on the application, Mr Sillar stated that the following steps were undertaken:

(a) On 1 March 2021, Mr Sillar sent an email to the employees covered by the Agreement which explained the proposed termination process and provided employees with a document comparing the key terms of the Agreement against the Award, as well as current rates of pay under the Award. A copy of the email and comparison document was attached to the application.

(b) Employees were invited to provide their views as to support, opposition, or any other feedback in relation to the application by reply email.

[11] Mr Sillar submitted that he received one employee response and did not receive any response indicating opposition to the application. In discussions he has had with employees, they have indicated their support to terminate the Agreement and have the Award apply to their employment.

[12] The applicant has advised that nine employees are currently covered by the Agreement and has provided a copy of the one employee response, 5 which did not raise any objection to the proposed application to terminate the Agreement.6

Public Interest

[13] Based on the material contained in the employer’s statutory declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might weigh against termination of the Agreement.

Employee Views

[14] I am satisfied that the nine employees covered by the Agreement were provided the opportunity to express their views, as evidenced by the discussions between the employer and employees, and the email correspondence sent to the employees on 1 March 2021. There was a single response given by one employee, and in this response there was no opposition to the application.

Employee Organisation Views

[15] There are no employee organisations covered by the Agreement.

Effect of the termination

[16] It is submitted that termination of the Agreement would result in business synergy and a reduction of complexity by consolidating all employees onto the same employment arrangements.

[17] It is also submitted that the rates in the Award will be higher than those in the Agreement on weekends and public holidays.

[18] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[19] Pursuant to s.227 of the Act, the termination operates from the date of this Decision. An order (PR728573) will issue with this Decision.

DEPUTY PRESIDENT

 1   AE424329

 2   Form F24C of Mr F. Sillar dated 25 March 2021

 3   I note that the Fast Food Industry Award 2020 does not yet exist, and the Award is currently the Fast Food Industry Award 2010 [MA000003].

 4   Form F17 of Mr F. Sillar dated 7 April 2017; AE424329

 5   Email of Sean D’Almada-Remedios dated 6 April 2021

 6   Email of David Goyeneche dated 1 March 2021

Printed by authority of the Commonwealth Government Printer

<AE424329  PR728215>