F.A.R.M. Business Investments Pty Limited T/A Red Mo Haircutters

[2019] FWCA 6128

[2019] FWCA 6128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

F.A.R.M. Business Investments Pty Limited T/A Red Mo Haircutters
(AG2019/2915)

RED MO HAIRCUTTERS EMPLOYEE ENTERPRISE AGREEMENT 2010

Hair and Beauty
COMMISSIONER HUNT	BRISBANE, 3 SEPTEMBER 2019

Application for termination of the Red Mo Haircutters Employee Enterprise Agreement 2010.

[1] On 8 August 2019 F.A.R.M. Business Investments Pty Limited T/A Red Mo Haircutters (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Red Mo Haircutters Employee Enterprise Agreement 2010 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Ms Joan’na Flegler, Owner of the Employer. Ms Flegler declared that the Employer could not sustain the set annual wage increases set out in the Agreement and Employer’s viability would be ensured by terminating the Agreement and reverting to the Hair and Beauty Industry Award 2010 (the Award).

[3] On 16 August 2019, my Associate wrote to the Employer noting Ms Flegler’s statutory declaration and seeking the views of the employees that remained covered by the Agreement. The Employer was directed to provide to the relevant employees a copy of the email from my chambers inviting them to provide their views to chambers and copies of the application in this matter and Ms Flegler’s statutory declaration.

[4] On 19 August 2019 the Employer forwarded to my chambers copies of emails sent on 19 August 2019 to each of the relevant employees providing the above documents as directed. The Employer asserted that 16 employees were covered by the Agreement and each of those employees were invited to provide their views on the termination of the Agreement by 26 August 2019.

[5] No employee covered by the Agreement wrote to my chambers providing their view on the proposed termination of the Agreement.

[6] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[7] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] I am aware that 16 employees remain covered by the Agreement. If the Agreement is terminated, the terms and conditions of their employment will be determined in accordance with the Award. However, the Employer has communicated to each of the 16 employees that their over-Award rate of pay will be maintained until the Award ‘catches up’ to the over-Award payment that they are each being paid. None of the employees took up my invitation to provide their views on the termination of the Agreement.

[9] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] The termination will take effect from today, 3 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE883176  PR711962>