Ellen Marie Forbes
[2023] FWCA 2918
•11 SEPTEMBER 2023
| [2023] FWCA 2918 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Ellen Marie Forbes
(AG2023/2490)
LIBERTINE - ENTERPRISE AGREEMENT 2013
| Restaurants | |
| COMMISSIONER SIMPSON | BRISBANE, 11 SEPTEMBER 2023 |
Application for termination of the Libertine - Enterprise Agreement 2013
Ellen Marie Forbes (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Libertine - Enterprise Agreement 2013 (the Agreement) after its nominal expiry date.
The Agreement is a single enterprise agreement and its nominal expiry date was 1 December 2016.
Section 225 and 226 of the Act relevantly 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.
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.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(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 position of 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.”
The Form F24C declaration, signed by Ms Forbes noted that the Hospitality Award, when taking into account the usual hours of casual staff covered by the Agreement, would result in fairer pay and conditions.
On 1 August 2023 I issued a Direction for the Employer to advise whether it objected to the termination of the Agreement. On 4 August 2023 the Employer through their representative provided the below:
“Dear Associate
We refer to your email below and have been instructed to advise you that our client does not object to the application by Ms Forbes however that consent is predicated on the following:
1. That all staff covered by the enterprise agreement are made aware of the application by Ms Forbes and are given a reasonable time to respond to the Commission about their views on Ms Forbes application; and
2. That our client is given a reasonable time if the Commission decides to make an order to terminate our client’s enterprise agreement (we have been instructed that the first full pay period or after 12 September 2023 would be our client’s preferred date) in order to transition their staff from the enterprise agreement to the relevant modern Award.”
…”
Directions were issued on 4 August 2023 for the Employer to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that if any employee wished to be heard on the matter, they were to submit any views in relation to the Application by 23 August 2023.
The Employer confirmed by way of email on 16 August 2023 that it had served a copy of the Application, Statutory Declaration and Directions on its employees.
To date, the Commission has received one email from an employee who supported the termination of the Agreement.
On 1 September 2023, I sent correspondence to the parties, seeking that a termination date be nominated. The Applicant replied this same day noting that she proposed 4 September 2023 as the termination date. On 4 September 2023 I sent further correspondence noting that if nothing was received by 5:00PM on 4 September 2023, the termination date of the Agreement would be as proposed by the Applicant.
The Employer sought a short delay until the first full pay period on or after 25 September 2023. This was due to:
· the Employer being concerned that other employees may not understand the impact of Ms Forbes application on the business as well as employees take home pay; and
· the Employer needed this time to properly ‘translate’ the existing staff over the various award classifications.
I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 25 September 2023.
I Order accordingly.
COMMISSIONER
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