Mahalakshmi Trading Pty Ltd ATF Mahalakshmi Unit Trust T/A Zarraffas Coffee Ormeau

[2024] FWCA 679

[2024] FWCA 679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Mahalakshmi Trading Pty Ltd ATF Mahalakshmi Unit Trust T/A Zarraffas Coffee Ormeau

(AG2024/216)

ZARRAFFAS COFFEE ORMEAU ENTERPRISE BARGAINING AGREEMENT 2016-2020

Restaurants
COMMISSIONER SIMPSON	BRISBANE, 21 FEBRUARY 2024

Application for termination of the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020

1. Mahalakshmi Trading Pty Ltd ATF Mahalakshmi Unit Trust T/A Zarraffas Coffee Ormeau (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Zarraffas Coffee Ormeau Enterprise Bargaining Agreement 2016-2020 (the Agreement) after its nominal expiry date.

1. The Agreement is a single enterprise agreement and its nominal expiry date was 23 December 2020.

1. The Agreement does not cover any employee organisations (unions).

1. Section 225 and 226 of the Act relevantly provides:

“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     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; or

(b)       the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)       all of the following apply:

(i)           the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)          the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)         if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of 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.

(2)       This subsection covers a termination of the employment of an employee:

(a)       at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)       because of the insolvency or bankruptcy of the employer.

(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).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(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; and

(c)       whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)       In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

1. Mayur Patel from the Applicant filed a Form F24C Statutory Declaration in support of the application to terminate the Agreement. The Statutory Declaration included information indicating that by moving to the Fast Food Award employees will receive weekend penalty rates, which will serve as a better incentive for them to work on weekends as well as early morning before 6am rate as they open at 4.30am. It was submitted that this change will not only improve overall compensation but also acknowledge the valuable contributions employees make during weekend shifts. It was submitted by the Applicant that it is important that employees feel rewarded for their hard work, dedication, and flexibility as it is a very fast paced environment, this is important to the business's success.

1. Directions were issued on 5 February 2024 for the Applicant to serve a copy of the F24B Application on its employees as well as a copy of the F24C Statutory Declaration and Directions. The Directions also provided that if any employee wished to be heard on the matter, they were to submit any views in relation to the Application by 14 February 2024.

1. The Applicant confirmed, by way of email on 6 February 2024 that it had served a copy of the Application, Statutory Declaration and Directions on its employees.

1. To date, no material has been received from any employees of the Applicant.

1. On the basis of the information provided to me in the Application, and as set out above, I am satisfied that the requirements of s.226 of the Act as are relevant to this Application for termination have been met. The Applicant has nominated 23 February 2024 as a termination date, and I consider that to be an appropriate date. Accordingly, the termination will operate from 23 February 2024.

1. I Order accordingly.

COMMISSIONER

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