Melba’s Australia Pty Ltd T/A Melba’s Chocolates and Confectionery
[2022] FWCA 1860
•7 JUNE 2022
| [2022] FWCA 1860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Melba’s Australia Pty Ltd T/A Melba’s Chocolates and Confectionery
(AG2022/1552)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 7 JUNE 2022 |
Application for termination of the Melba’s Chocolates Tourism Factory Workers Enterprise Agreement 1995
On 20 May 2022 Melba’s Australia Pty Ltd T/A Melba’s Chocolates and Confectionery (Melbas or the applicant employer) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW TPCA Act) to terminate the Melba’s Chocolates Tourism Factory Workers Enterprise Agreement 1995 (the Agreement).
In support of the application, Thomas Foristal, Manager, lodged a statutory declaration with the Commission dated 19 May 2022 stating that the Agreement expired twenty-five years ago and if the Agreement were to be terminated, employees covered under the Agreement would be governed by relevant modern awards made under the Fair Work Act 2009 (FW Act), namely the General Retail Industry Award 2020 and the Food, Beverage and Tobacco Award 2020.
The statutory declaration additionally outlined that an informal vote was held amongst the nineteen employees currently covered by the Agreement regarding its termination, of which twelve voted in favour.
I issued Directions concerning the application on 25 May 2022 which provided an opportunity for employees under the Agreement to be informed of these proceedings and to oppose or otherwise express a view on the application. I directed that Melbas take all reasonable steps to place a copy of the Directions on a relevant noticeboard visible to employees.
On 30 May 2022, the applicant employer filed a statutory declaration stating that they had placed a copy of the Directions on relevant noticeboards. Annexed to the statutory declaration was a photograph showing the Directions and Notice of Listing on a noticeboard in the workplace.
Consideration
I heard the matter by telephone 7 June 2022 at which time I received submissions from Ms McCarthy, the applicant employer’s representative.
Melbas submit that the Agreement, having reached its nominal expiry date twenty-five years ago and having not been renewed since, is no longer user-friendly to either Melbas or employees because the instrument does not reflect contemporary industrial standards and can only be understood by reference to a combination of historical other instruments that are referenced.
Melbas further submit that whilst it has, over these twenty-five years, adjusted rates of pay to reflect increases to award rates and also complies with other minimum requirements (such as the National Employment Standards under the FW Act), it would be advantageous to its employees and the business to have a singular contemporary point of reference for industrial regulation.
Item 16, Schedule 3 of the FW TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the FW Act (including s 226) applies to applications to terminate collective agreement-based transitional instruments which have passed their nominal expiry date.
I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. Its nominal expiry date was 2 February 1997. No employee organisation is covered by the Agreement.
Section 226 of the FW Act provides:
“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.”
Having regard to the requirements of s 226 and based on the evidence and submissions before me, including the statutory declarations of Thomas Foristal of 19 May 2022 and 30 May 2022, I am satisfied that:
· employees have been given an opportunity to be heard on the application;
· no employee interests have appeared in opposition to the application;
· it is not contrary to the public interest to terminate the Agreement; and
· it is appropriate to terminate the Agreement taking into account all of the circumstances.
It is not contrary to the public interest to terminate the Agreement because the Agreement is now a generation beyond its nominal expiry, has not been updated since first being made, does not reflect contemporary industrial standards, is not a user-friendly point of reference for determining industrial rights and obligations and, if terminated, would be substituted by the operation of contemporary modern awards.
On the question whether it is appropriate to terminate the Agreement, I take into account effects or likely effects on employees. I note that in one respect (the hourly rate payable to employees for the first three hours of overtime) will be lesser under the modern awards than currently paid under the Agreement. However, I note that overtime rates beyond three hours will be higher and that under the modern awards the base hourly rate will be higher for work on Saturdays and Sundays than current rates of pay, and that no base rates of pay will be lesser. I also note the undertakings given by Melba in these proceedings that it will maintain a staff discount facility and intends to continue to provide uniforms to employees.
Considered overall, it is unlikely there will be a material adverse effect on employees as a result of termination of the Agreement.
Melbas have sought a prospective date of operation to allow employees to be informed of the Commission decision and to transition to these new arrangements. I consider that an appropriate course.
In accordance with s 227 of the FW Act, the termination will take effect from 11:59pm on 30 June 2022 meaning that the new arrangements commence from 1 July 2022. An Order[1] to this effect is issued.
DEPUTY PRESIDENT
Appearances:
E McCarthy, with permission, and T Foristal and B Murphy, on and behalf of Melba’s Australia Pty Ltd T/A Melba’s Chocolates And Confectionery
Hearing details:
2022
Adelaide (by telephone)
7 June
[1] PR742391
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