Deborah Hughes

[2015] FWCA 8038

[2015] FWCA 8038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Deborah Hughes
(AG2015/5525)

THE MIAMI BAKEHOUSE ENTERPRISE AGREEMENT 2009 - CAFE

Food, beverages and tobacco manufacturing industry
COMMISSIONER WILLIAMS	PERTH, 23 NOVEMBER 2015

Application for termination of The Miami Bakehouse Enterprise Agreement 2009 - Cafe.

[1] This decision concerns an application by Ms Deborah Hughes (Ms Hughes or the applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) to terminate The Miami Bakehouse Enterprise Agreement 2009 - Cafe (the Agreement). The Agreement had a nominal expiry date of 6 August 2014.

[2] The relevant provisions of the Act are 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.”

[3] Turning to consider the matters the Commission must consider which are provided for in section 226.

[4] There is no reason why termination of the Agreement would be contrary to the public interest.

[5] The application to terminate the Agreement is made by Ms Hughes who is an employee covered by the Agreement. Her submission is that employees from her knowledge are generally in agreement with terminating the Agreement and understand they would then be covered by the applicable modern award.

[6] The respondent employer (the respondent) does not object to the Agreement being terminated in principle however proposes that the date of termination be prospective. A prospective termination date is proposed to allow the parties time to finalise negotiations for a new agreement and for any such new agreement which is supported by a majority vote of employees to be approved by the Commission.

[7] The respondent submits that if the Agreement was immediately terminated before a new agreement has been negotiated and approved by the Commission this would result in the employees covered by the Agreement being covered by the relevant modern award for a period which will necessitate changes being made to payments to these employees and potentially also roster changes being made as a consequence of the different payment structure in the relevant modern award compared to the Agreement and then, in all likelihood, shortly after these changes are made a second round of changes would be required as the employees move from being covered by the relevant modern award to being covered by the new agreement. The respondent submits that this would impose an unnecessary administrative burden and cost on the respondent which could be avoided by simply delaying the termination date of this Agreement to allow time for the parties to finalise and have approved a new agreement.

[8] The likely effect of the immediate termination of the Agreement on the employees would be variable. In all likelihood some employees will enjoy an improvement in their entitlements under the relevant modern award however it is also likely that because of the different payment structures under the relevant modern award the respondent would need to change existing rosters which may destabilise the established patterns of working hours for some employees, potentially to their detriment.

[9] As was discussed at the hearing of this application if the Agreement is not immediately terminated and the parties in future negotiate successfully a new agreement then when that new agreement is approved by the Commission the current Agreement no longer has any effect.

[10] Considering then all these circumstances I accept that immediate termination of the Agreement will have a mixed impact on the employees covered by the Agreement. Separately immediate termination of the Agreement would be unnecessarily disruptive to the employer and some employees and would impose an additional administrative burden if it is the case that in due course the parties negotiate and have approved a new agreement.

[11] At the hearing of this matter the parties privately conferred and have advised that they both agree that an acceptable date for the termination of this Agreement would be 20 January 2016.

[12] I accept that terminating the Agreement from 20 January 2016 is an appropriate course in all the circumstances of this case. This will allow a period for the parties to negotiate a new agreement and for that to be approved, which will then apply instead of the current Agreement; before the current Agreement is terminated. If for whatever reasons the parties cannot successfully negotiate a new agreement or a new agreement is not approved by 20 January 2016 then the current Agreement will terminate on this date and the employees will be covered by the relevant modern award. If some time after this a new agreement is approved by the Commission then this new agreement will apply to these employees.

[13] Accordingly, The Miami Bakehouse Enterprise Agreement 2009 - Cafe is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from 20 January 2016.

COMMISSIONER

Appearances:

Mr D. Hughes on behalf of the applicant.

Mr G. Lilleyman, representative for the respondent.

Hearing details:

2015.

Perth:

November 20.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE881086  PR574239>