Lindt & Sprungli (Australia) Pty Ltd

[2013] FWCA 5428

[2013] FWCA 5428

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Lindt & Sprungli (Australia) Pty Ltd
(AG2013/7378)

LINDT AND SPRUNGLI AUST PTY LTD EMPLOYER GREENFIELDS AGREEMENT VIC

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 8 AUGUST 2013

Application for termination of the Lindt and Sprungli Aust Pty Ltd Employer Greenfields Agreement VIC.

[1] This is an application, filed by Lindt & Sprungli (Australia) Pty Ltd (the ‘applicant’) pursuant to Item 15, Sch 3 of the Fair Work (Transitional Provisions and Consquential Amendments) Act 2009 (the ‘Transitional Act’) and s 222 of the Fair Work Act 2009 (the ‘Act’) to terminate the Lindt and Sprungli Australia Employer Greenfields Agreement VIC [AC323611] (the ‘Agreement’). Relevantly, the Agreement has passed its nominal expiry date of 1 June 2010. The Agreement covers 19 employees at the applicant’s cafe in Melbourne, Victoria. The employees would otherwise be covered by the Restaurant Industry Award 2010 [MA000119] (the ‘Modern Award’).

[2] The relevant provisions of the Act governing this application are set out at ss 220-224 as follows:

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

[3] The application was supported by a statutory declaration of Ms F Behrens, Human Resources Manager of the applicant (s 222(2)). Ms Behrens said that the applicant operated seven other cafes in addition to the cafe in Melbourne. Employees at these restaurants are covered by a combination of Employer Greenfields Agreements, Australian Workplace Agreements, Individual Transitional Employment Agreements and the Modern Award. Due to difficulties in administrating multiple industrial arrangements and the outdated nature of some of the instruments, the applicant was seeking to have all of its employees covered by the Modern Award.

[4] Further, Ms Behrens said that the applicant had met with all employees covered by the Agreement on 24 June 2013 and explained the reasons for the application to terminate the instruments. Copies of the Modern Award were made available to the employees and they were provided with written confirmation of the meeting and given time to consider their vote. I am satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to decide whether they agreed with the proposal to terminate the Agreement (s 220(2)). On 28 June 2013, all 18 of the employees who voted, agreed to terminate the Agreement, satisfying s 221(1) of the Act. The application was lodged on 3 July 2013, thus satisfying s 223(a) of the Act. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination (s 223(3)).

[5] At a hearing of the application (and other related applications) on 6 August 2013, Ms P Salewicz and Ms J van Bronswijk of the Australian Industry Group appeared with Ms F Behrens for the applicant. Ms Salewicz affirmed the content of Ms Behrens’ statutory declaration and said that there were some minor changes to the terms and conditions of the employees in being covered by the Modern Award in that it did not provide for blood donation or jury service leave, both of which are provided for in the Agreement. The Agreement also provided for more generous entitlements to overtime. However, the applicant had agreed in writing to maintain any entitlements under the Agreement which are more beneficial than those under the Award.

[6] Having considered the applicant’s submissions and upon reviewing the application and the statutory declaration of Ms Behrens, I am satisfied that all of the requirements of the Act, in particular ss 220, 221, 222 and 223, have been met. Accordingly, the Lindt and Sprungli Australia Employer Greenfields Agreement VIC [AC323611] is terminated. Pursuant to s 224 of the Act, the termination is effective on and from 7 August 2013.

DEPUTY PRESIDENT

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<Price code A, AC323611  PR539873>