Gate Gourmet Pty Ltd T/A Gate Gourmet

[2021] FWCA 2560

[2021] FWCA 2560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Gate Gourmet Pty Ltd T/A Gate Gourmet
(AG2021/4630)

GATE GOURMET SYDNEY ENTERPRISE AGREEMENT 2018-2021

Airline operations
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 MAY 2021

Application for termination of the Gate Gourmet Sydney Enterprise Agreement 2018-2021.

[1] On 10 April 2021, Gate Gourmet Pty Ltd T/A Gate Gourmet (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Gate Gourmet Sydney Enterprise Agreement 2018-2021 [AE503894](the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement has a nominal expiry date of 30 June 2021.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Statutory Declaration made on 10 April 2021 by Samuel Cordoba, Senior Human Resources Manager of the Applicant. Mr Cordoba declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 18 March 2021, the Applicant sent an email to employees via its electronic communication system, MailChimp, which provided:

i. due to operational challenges arising in relation to COVID-19, the Company would be asking employees to vote to approve a new Agreement;

ii. given the current Agreement did not expire until June 2021, employees would also be asked to vote to terminate the current Agreement, although the Company would be requesting that the termination of the current Agreement not come into effect until the new Agreement was approved;

iii. information relevant to the new Agreement and its terms as indicated in and attached to Form F17 lodged together with the application;

iv. times and dates of Q&A sessions during which Employees would be provided with the opportunity to ask questions, discuss the proposed termination of the current Agreement and the approval of the new Agreement;

v. voting processes for the termination of the current Agreement and the approval of the new Agreement; and

vi. details of HR, if there were any questions.

b) From 19 March 2021 – 25 March 2021:

i. The Company held 15 toolbox meetings and shift briefings dedicated to explaining, and answering questions about, the proposed Agreement, its terms and their effects, as well as the termination of the current Agreement;

ii. Two dedicated online explanation sessions were also held via Microsoft Teams on 25 March 2021; and

iii. The Company held 10 Q&A sessions during which Employees were provided with the opportunity to ask questions, discuss the proposed termination of the current Agreement and the approval of the new Agreement.

[4] Mr Cordoba also declared that the following steps were taken by the Applicant to notify all employees covered by the Agreement of the time and place at which the vote was to occur; and the voting method to be used:

a) The communication to employees on 18 March 2021:

i. Provided that the vote to terminate the Current Agreement would occur by way of secret ballot, conducted by CiVS (an independent polling company);

ii. Provided that voting would open at midnight on 26 March 2021, and close at 5pm on 27 March 2021;

iii. Provided that employees would receive an email or text message directly from CiVS, which would confirm their user name and details on casting a vote, via SMS or online;

iv. Was posted on the HR Notice Board in a prominent position; and

v. Was posted next to all electronic time in attendance (Bundy) clocks in the Sydney unit.

[5] On 26 March 2021 voting commenced. Voting concluded on 27 March 2021.

[6] Mr Cordoba declared that of the 492 employees covered by the Agreement, 352 cast a valid vote and 270 voted to terminate the Agreement.

[7] No submissions in opposition to the termination were filed. The Commission has sought the views of the Transport Workers’ Union of Australia, who do not oppose the termination.

[8] On 7 May 2021, I approved the Gate Gourmet Sydney Enterprise Agreement 2021 - COVID -19 Transitional Agreement [AE511358] which is the subject of this s.222 application. It has an operative date 14 May 2021.

[9] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[10] In accordance with s.224 of the Act, the termination will come into effect on 14 May 2021.

DEPUTY PRESIDENT

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<AE503894  PR729599>