Glen Erin Group

[2019] FWCA 6541

[2019] FWCA 6541

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Glen Erin Group
(AG2019/3038)

EMPLOYEE COLLECTIVE AGREEMENT GLEN ERIN GROUP 2007

Hospitality industry
COMMISSIONER BISSETT	MELBOURNE, 20 SEPTEMBER 2019

Application for termination of the Employee Collective Agreement Glen Erin Group.

[1] On 16 August 2019 the Commission received an application by Ms Suzy Campbell to terminate the Employee Collective Agreement Glen Erin Group (Agreement) pursuant to Schedule 3, Item 16 of the fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act).

[2] Item 16, Schedule 3 of the FW (TPCA) Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] The FW Act relevantly provides 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.

The Application

[4] The Agreement was made under the Workplace Relations Act 1996 (WR Act). The application for termination of the Agreement says that Ms Campbell was advised that the Agreement was made in 2007. It has a nominal expiry date on the fifth anniversary after the date that it was lodged (clause 3). There is no dispute that it has passed its nominal expiry date and I am satisfied that it has passed its nominal expiry date.

[5] The application for termination of the Agreement was made by Ms Campbell. Ms Campbell is an employee of Glen Erin Group. She is therefore entitled to make the application.

[6] The legal name of the business that made the Agreement is Scales Australia P/L trading as Glen Erin Group. The employer contact is Mr Brian Scales who was provided with a copy of the application for termination of the Agreement by Ms Campbell.

[7] Apparently Scales Australia P/L has subsequently entered into a partnership with Moquan Pty Ltd.

The Agreement

[8] As mentioned above the Agreement was apparently made and commenced operation in 2007 when it was lodged with the (then) office of the Employment Advocate (OEA). The Agreement encompassed “all terms and conditions” (clause 1) with the “minimum conditions” therein to meet the minimum conditions prescribed by the Australian Fair Pay and Conditions Standard specified in the WR Act.

[9] The Agreement specified the types of employment, hours of work, roster arrangements and breaks, leave provisions, public holidays, classifications, termination and resignation provisions and matters associated with workplace arrangements and procedures. It also listed those “protected award provisions” derived from the Liquor and Accommodation Industry – Restaurants – Victoria – Award 1998.

[10] The rates of pay for employees are set out in clause 11 of the Agreement. That clause states that:

The hourly basic periodic rates of pay for all hours worked appear in the table below. The wage rates listed in the table below include payment for protected award conditions dealing with penalty rates, public holidays, leave loading, overtime provisions and shift allowances.

[11] The rates of pay listed in the Agreement are those that operated at the time the Agreement was lodged with the OEA.

[12] I understand that the actual rates of pay paid by Glen Erin Group have been updated annually and now reflect the rates of pay in the Hospitality Industry (General) Award 2010 (HIG Award). However, the rates paid still apply to all hours worked.

[13] The Agreement also provides for a casual loading of 20% (clause 6).

[14] An analysis of the Agreement at the rates currently paid shows that only those on-going employees working ordinary hours between 7:00am and 7:00pm Monday to Friday are, on the rates of pay, no worse off under the Agreement than they would be under the Award. Casual employees and any employee working outside the span of ordinary hours including weekends are receiving less pay than they would otherwise receive were they paid under the provisions of the HIG Award. This assessment does not include any assessment of other conditions of employment.

[15] Mr Scales of Glen Erin Group subsequently advised the Commission that he has full time staff and casual staff. It is apparent that the facility operated by the Glen Erin Group is an accommodation/restaurant/cellar door/function (weddings, conferences) etc. facility. It is reasonable to assume that employees work outside the ordinary hours Monday to Friday specified in the HIG Award.

The views of the employer and employees

[16] Upon receipt of the application the Commission sought the views of the employer from Mr Scales. Mr Scales acknowledged the application on behalf of Moquan Pty Ltd and indicated that he had no commentary to make in relation to the application and that he would “await further instructions from the Commissioner.” The Commission subsequently listed the application for conference with Mr Scales indicating he would not be attending.

[17] Arising from that conference and further correspondence between my chambers and Mr Scales, Mr Scales indicated that he would be happy to forward correspondence from the Commission to his employees. I subsequently sent correspondence via Mr Scales to employees seeking their views on the application for termination of the Agreement. That correspondence set out the analysis undertaken by the Commission of the Agreement compared to the HIG Award, explained what would happen if the Agreement was terminated and invited employees to express views directly to my chambers. Employees were advised that their names would be kept confidential by the Commission although their views might be reproduced.

[18] Mr Scales indicated that he employed 37 employees, some of whom worked 38 hours per week and some part time between 5 and 20 hours per week.

[19] The Commission received feedback from 12 employees, all of whom indicated overwhelming support for the Agreement to be terminated.

Should the Commission terminate the Agreement?

[20] I do not consider that it would be contrary to the public interest to terminate the Agreement. The public interest is well served by the maintenance of minimum employment standards as given effect through modern awards and the application of those standards to employees. I am further satisfied that the public interest is served by the maintenance of relevant and up to date wages and conditions of employment that better reflect the contemporary workplace. The termination of this Agreement will result in employees being covered by a modern award (HIG Award).

[21] I do appreciate that the Glen Erin Group may consider that it has particular needs that are, perhaps, not reflected in the HIG Award. This may be so, but this is addressed through enterprise bargaining within the framework of the FW Act. It is free to pursue such an agreement if it so choses.

[22] I am, for these reasons, satisfied that it is not contrary to the public interest to terminate the Agreement.

[23] I have sought the views of employees and each of those who have responded has indicated that they support to the termination of the Agreement. Mr Scales, as the employer, has chosen not to express a view.

[24] There will be no adverse effect of termination of the Agreement on employees that has been expressed to me. The employer has not expressed any view.

Conclusion

[25] For all of these reasons I have decided to terminate the Employee Collective Agreement Glen Erin Group.

[26] In the circumstances, where the employer will need to make arrangements to properly transfer conditions to those contained in the HIG Award, I have decided that the termination should take effect from the first full pay period on or after 4 October 2019.

COMMISSIONER

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