Laria Barnett - [2024] FWCFB 132

[2024] FWCFB 132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Laria Barnett

(AG2023/4788)

BURGER URGE ENTERPRISE AGREEMENT 2015

Fast food industry
DEPUTY PRESIDENT BELL COMMISSIONER JOHNS COMMISSIONER ALLISON	MELBOURNE, 13 MARCH 2024

Application for termination of the Burger Urge Enterprise Agreement 2015 – agreement terminated.

This decision concerns an application (the Application) made by Ms Laria Barnett (Ms Barnett) for the termination of the Burger Urge Enterprise Agreement 2015 (AE415344) (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act).

The Agreement is a single enterprise agreement made pursuant to s.185 of the Act. It was approved by Deputy President Bull in matter AG2015/3678 on 29 September 2015.[1] The Agreement has a nominal expiry date of 28 September 2019.

The Agreement currently covers the following employers:
a.   Burger Urge Pty Ltd
b.   BU Rockhampton Pty Ltd,
c.   BU Mackay Pty Ltd, and
d.   BU Bundaberg Pty Ltd
(collectively, the Employers) [2]
The Employers engage employees at Burger Urge outlets throughout Queensland, New South Wales and the Northern Territory. The Agreement covers employees engaged by the Employers at these franchises under the classifications set out in Schedule A in the Agreement (the Employees). Ms Barnett is an employee covered by the Agreement.

There is no employee organisation covered by the Agreement.

Legislative Framework

Section 225 of the Act 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.”

Section 226 of the Act relevantly provides that:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement;

…

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

…

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

(b) each employer;

(c) each employee organisation (if any).

…

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laria Barnett

Details

AGLC: Laria Barnett [2024] FWCFB 132
Case: [2024] FWCFB 132
Decision Date: 13 March 2024

CaseChat Overview and Summary

This case involved an application by Laria Barnett for the termination of the Burger Urge Enterprise Agreement 2015, pursuant to section 225 of the Fair Work Act 2009. The application was made on the basis that the continued operation of the Agreement would be unfair for employees covered by the Agreement, as it provided terms and conditions below those of the Fast Food Industry Award 2020. Barnett, an employee covered by the Agreement, argued that the Agreement's terms were less beneficial than the applicable award, particularly in terms of weekend penalties, annual leave loading, and special clothing allowances. The Employers initially opposed the application but later withdrew their opposition, requesting that any termination take effect from the first full pay period on or after 1 April 2024. The Fair Work Commission conducted a Better Off Overall Test (BOOT) analysis which confirmed that the Agreement was less beneficial than the award in several respects. The Commission determined that the continued operation of the Agreement would indeed be unfair for the employees, and it was appropriate to terminate the Agreement. The termination was ordered to take effect from 14 April 2024, aligning with the payroll cycle.

The legal issues in this case centred on the criteria for terminating an enterprise agreement after its nominal expiry date, as set out in sections 225 and 226 of the Fair Work Act. Specifically, the Commission had to determine whether the continued operation of the Agreement would be unfair for the employees, and whether termination would be appropriate in all the circumstances. In making this determination, the Commission considered the views of the employees, employers, and any employee organisations covered by the Agreement, as well as whether bargaining for a new agreement was occurring and whether termination would adversely affect the bargaining position of the employees. The Commission also considered whether termination would be appropriate in all the circumstances, taking into account any other relevant matters. The decision to terminate the Agreement was based on the finding that the Agreement provided significantly less beneficial terms for employees than the applicable award, and that termination would not adversely affect the bargaining position of the employees.

Orders