Lachlan Williams
[2022] FWCA 1806
•1 JUNE 2022
| [2022] FWCA 1806 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.225—Enterprise agreement
Lachlan Williams
(AG2021/9064)
Lachlaur Pty Ltd - Enterprise Agreement 2012
| Fast food industry | |
| Commissioner Matheson | SYDNEY, 1 JUNE 2022 |
Application for termination of the Lachlaur Pty Ltd - Enterprise Agreement 2012.
Mr Lachlan Williams (Applicant) has filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Lachlaur Pty Ltd - Enterprise Agreement 2012 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
Lachlaur Pty Ltd (ACN 087 582 527) (Employer) is the employer covered by the Agreement.
The Agreement is a single enterprise agreement. It was approved by Commissioner Asbury on 17 December 2012.[1]
The nominal expiry date of the Agreement is 1 December 2014.
Legislation
The relevant provisions of the Act are 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.
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.”
The Commission issued directions requiring that:
· the Applicant file an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of his application to terminate the Agreement;
· the Employer serve a copy of the Commission’s directions, Form F24B, Form F24C and any other documents filed by the Applicant on its employees and any other employer covered by the Agreement and any employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and
· any employee, employer or employee organisation covered by the Agreement which opposes the termination of the Agreement file in the Commission any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement.
Consideration – s.225
Is the Applicant an employee covered by the Agreement?
It is not in dispute and I am satisfied that the Applicant is an employee covered by the Agreement and has standing to bring the application.
Has the Agreement passed its nominal expiry date?
Clause 1.3.2 of the Agreement provides that the Agreement will nominally expire on 1 December 2014. Having considered the materials before the Commission and clause 1.3.2 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2]
Consideration of the public interest will involve something that is distinct from the interests of the persons and bodies covered by the Agreement.[3] Section 226(b) of the Act clearly requires the interests of the persons or bodies covered by an agreement to be taken into account and those interests are considered separately from the public interest, although these interests may nevertheless be similarly affected.
I do not consider that the termination of the Agreement would impact employment levels, inflation and the maintenance of proper industrial standards, particularly noting that the relevant modern award would apply if the Agreement was terminated. I have not identified any interests in relation to the Application that are distinct in nature from the interests of the parties.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Section 226(b) – Appropriateness
There are no employee organisations covered by the Agreement. No employee raised an objection to the Application or filed submissions in opposition in response to the Application.
The Applicant is an employee who seeks to have the Agreement terminated and submitted, by way of summary, that:
· when the Agreement was created it was with everyone’s bests interests in mind however it is now over 10 years old and is not operating in the interests of the employees covered by it;
· rates of pay in the General Retail Industry Award 2020 (Award) are now in excess of those in the Agreement; and
· the Agreement sets out rates that are applicable to work on Monday-Friday as well as on weekends and public holidays and employees do not have entitlements under the Agreement to penalty rates for working weekends and public holidays. While the Agreement when made contained higher base rates of pay to compensate for this, the increase in rates under the Award means that employees are no longer receiving more than what they would earn under the Award.
I have undertaken my own analysis of the Award relative to the Agreement and, on balance, the Award sets out more beneficial entitlements for employees.
The Employer does not oppose the application and sought an operative date of any order to terminate the Agreement that is the first full pay period 21 days after the date of the decision to terminate the Agreement.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 27 June 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2012] FWAA 10589].
[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.
[3] Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540, [129].
Printed by authority of the Commonwealth Government Printer
<AE898885 PR742231>
0
0
0