Fast Casual Logistics Pty Ltd

[2021] FWCA 2799

[2021] FWCA 2799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Fast Casual Logistics Pty Ltd
(AG2021/5113)

FASTCASUAL LOGISTICS PTY LTD - ENTERPRISE AGREEMENT 2014 - 2018

Restaurants
DEPUTY PRESIDENT DEAN	CANBERRA, 17 MAY 2021

Application for termination of the FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018.

[1] On 12 May 2021 Fast Casual Logistics Pty Ltd (FC Logistics) made an application to terminate the FastCasual Logistics Pty Ltd - Enterprise Agreement 2014 - 2018 (the Agreement) under s.225 of the Fair Work Act 2009.

[2] The Agreement has passed its nominal expiry date of 1 February 2018 and does not cover any employee organisations.

[3] The provisions relevant to the application are contained in sections 225, 226 and 227 of the Act:

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.

[4] The application is supported by a statutory declaration by Mr Jatin Fangalia, Company Director of the FC Logistics. Mr Fangalia explained that FC Logistics employs a number of staff who perform work at the Guzman y Gomez outlets in the Canberra Centre, Gungahlin and Westfield Belconnen (the Outlets). The Outlets are operated by Dhanu Pty Ltd (Dhanu) which is an associated entity of FC Logistics.

[5] Whilst employees of FC Logistics who perform work at the Outlets are covered by the Agreement, employees of Dhanu are covered by the Fast Food Industry Award 2010 (the Award).

[6] Mr Fangalia stated that if the Agreement is terminated, employees will be covered by the Award. This would result in business synergy and a reduction of complexity by consolidating all employees of the employer onto the same employment arrangements. Mr Fangalia further stated that the loaded rates of pay under the Agreement, since its nominal expiry date, have become less beneficial than the penalty rates for weekend and public holiday under the Award. As such, the termination will not be contrary to the public interest.

[7] Mr Fangalia outlined the steps taken by FC Logistics to obtain the views of its employees on the proposed termination. Face to face meetings and telephone discussion were conducted with employees covered by the Agreement as well as an email sent to employees on 14 April 2021 to provide information which included a document comparing the key terms of the Agreement against the Award, a copy of the Agreement and a copy of the Fair Work Ombudsman’s pay rates guide for the Award. Employees were invited to participate in an online survey and attached to Mr Fangalia’s declaration was a document indicating that all 15 employees who took part in the survey supported the termination of the Agreement.

[8] Having considered the material before me, I am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

[9] Section 227 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement. In this case, it was appropriate to coincide the termination with the end of a pay cycle.

[10] The termination of this Agreement will take effect on and from midnight Sunday 16 May 2021.

DEPUTY PRESIDENT

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