Charlie Bolwerk

[2023] FWCA 1489

[2023] FWCA 1489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Charlie Bolwerk

(AG2023/859)

FOOD & DESIRE ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 MAY 2023

Application for termination of the Food & Desire Enterprise Agreement 2013.

[1]       Ms Charlie Bolwerk (the Applicant) has applied, pursuant to s 225 of the Fair Work Act 2009 (the Act), to terminate the Food & Desire Enterprise Agreement 2013 [1] (the Agreement). The Agreement is expressed to cover Food & Desire Pty Ltd (Food and Desire) and full time, part time and casual Employees of Food & Desire who are employed in the classifications listed in clause 18 of the Agreement. The Agreement has passed its nominal expiry date.

[2]       Directions were issued on 19 April 2023 requiring the Applicant, Food and Desire and any employees of Food and Desire who wished to be heard, to file submissions, witness statements and any other material in support of or in opposition to the application. Ms Bolwerk filed material in accordance with the directions issued. Food and Desire subsequently filed a reply in which they advised that they did not oppose the application. No other persons filed material in relation to the application.

[3] Section 225 of the Act provides:

“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.”

[4]       Section 226 of the Act provides:

“226 Terminating an enterprise agreement after its nominal expiry date

(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)     all of the following apply:

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

…….

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c)     each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining positionof the employees that will be covered by the proposed enterprise agreement.

(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

[5]       The application was accompanied by a Form 24C declaration completed by Ms Bolwerk’s representative Mr Joseph Kelly of Kelly Workplace Lawyers. Mr Kelly also filed submissions and a witness statement[2] in the matter on behalf of the Applicant. In the witness statement provided, Mr Kelly relevantly stated that at the date the application was made;

(i)the Agreement has passed its nominal expiry date, that being 20 January 2018;

(ii)bargaining for a proposed replacement agreement was not occurring; and

(iii)no notice has been provided to employees by Food and Desire that it proposes to or has agreed to commence bargaining for a replacement agreement.

[6]       Mr Kelly also provided in his witness statement a summary of differences between key provisions of the Agreement and the Hospitality Industry (General) Award 2020[3] (the Award) and identified based on his analysis that there were a range of terms and conditions under the Agreement that were less beneficial than the Award including the following;

(i)clause 14 of the Agreement provides for ordinary hours of work per week of 40 hours which is less beneficial than the Award which provides for 38 ordinary hours per week;

(ii)clause 14 of the Agreement, where it deals with part-time employment does not contain the protections found at clause 10 of the Award and is consequently less beneficial.

(iii)the Agreement does not provide for shift or weekend penalty rates;

(iv)the span of hours under clause 15.1 of the Agreement is broader than the span of hours provided by clause 29.2 of the Award;

(v)overtime rates under clause 16 of the Agreement are, in some respects, less beneficial than clause 28.4 of the Award; and

(vi)casual employees are not entitled to overtime penalty rates under the Agreement.

[7]       Food and Desire in their reply submission state that they do not agree with all the submissions filed by Ms Bolwerk but accept that the Agreement does not include all of the same benefits as the Award. They also advised that they do not oppose Ms Bolwerk’s application.

[8]       I have had regard to the material filed by Ms Bolwerk. I note for the sake of completeness in considering the terms and conditions of the Agreement relative to the Award, that the Award is wholly excluded in its operation by clause 4 of the Agreement. Further, the rates of pay provided for in the Agreement are less than the Award rates of pay. I note however that s 206(1) of the Act compels the payment of a base rate of pay of no less than the relevant award rates of pay in circumstances where the rates of pay under an enterprise agreement are less than a modern award that would otherwise apply.

[9]       Having regard to the relevant statutory requirements set out above and the material filed by the parties, I am satisfied that Ms Bolwerk is an employee of Food and Desire that is covered by the Agreement and has made an application to terminate the Agreement (s 225(b)). I am further satisfied that the continued operation of the Agreement would be unfair to employees (s 226(1)(a)) by reason of the less beneficial entitlements under the Agreement relative to the Award in circumstances where the base rates of pay under the Agreement are not sufficient to offset the relative detriment. Food and Desire do not oppose the application. Nor has any person covered by the Agreement indicated their opposition to termination of the Agreement (s 226(3)(c)). I am also satisfied that none of the criteria in s.226(4) apply and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)). Having regard to the above I am satisfied in all the circumstances that it is appropriate to terminate the Agreement and as such I must terminate the Agreement (s 226(1A)).

[10]     Food and Desire submits that the date of termination of the Agreement should be 18 September 2023 to allow it to transition from the Agreement. That submission was not opposed by the Applicant. In the circumstances I determine that the termination of the Agreement will operate from 18 September 2023. An Order giving effect to this Decision will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

[1] AE406379

[2] Witness Statement of Joseph Kelly, dated 1 May 2023

[3] MA000009

Printed by authority of the Commonwealth Government Printer

<AE406379  PR762469>