Lion Administration Services Pty Ltd

[2021] FWCA 6684

[2021] FWCA 6684

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

Lion Administration Services Pty Ltd
(AG2021/7883)

LION ADMINISTRATION SERVICES PTY LTD (QUEENSLAND) COLLECTIVE AGREEMENT 2006

Fast food industry
COMMISSIONER HUNT	BRISBANE, 15 NOVEMBER 2021

Application for termination of the Lion Administration Services Pty Ltd (Queensland) Collective Agreement 2006.

[1] On 16 October 2021, Lion Administration Services Pty Ltd (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to the Fair Work Commission (the Commission) to terminate the Lion Administration Services Pty Ltd (Queensland) Collective Agreement 2006 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a Form F24C statutory declaration of Mr Jason Harrington, Director of the Employer, which declared, amongst other things, that the termination of the Agreement would result in employees covered by the Agreement being paid pursuant to the terms within the Fast Food Industry Award 2010 (the Award).

[3] The Employer submitted that terminating the Agreement will result in employees receiving superior public holiday penalty rates pursuant to the Award, not appropriately contained within the Agreement, and that having employees appropriately rewarded for public holiday work is a community expectation.

[4] I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 21 October 2021, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 1 November 2021. I did receive correspondence from one person who stated that they are the parent of a young employee covered by the Agreement. The correspondence supported termination of the Agreement.

Legislative provisions

[5] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[6] Chapter 2, Part 2-4, Division 7, Subdivision D is 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.”

Conclusion

[7] Based on the material contained in the statutory declaration of Mr Harrington, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i), I consider that it is appropriate to terminate the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[9] Having regard to s.226(b)(ii), the terms of the Award will provide greater entitlements to employees, including weekend and late night penalty rates, together with a 25% casual loading. I consider it appropriate to terminate the Agreement.

[10] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[11] Per s.227 if an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement. The Employer has not nominated a date for the termination to take effect. I consider it reasonable for the termination to take effect from today.

[12] The termination will take effect from 15 November 2021.

COMMISSIONER

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