Mooloolaba Boost Pty Ltd T/A Boost Juice Mooloolaba

[2021] FWCA 4566

[2021] FWCA 4566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mooloolaba Boost Pty Ltd T/A Boost Juice Mooloolaba
(AG2021/5933)

APPLICATION FOR TERMINATION OF THE MOOLOOLABA BOOST PTY LTD ENTERPRISE AGREEMENT 2009

Fast Food
DEPUTY PRESIDENT LAKE	BRISBANE, 28 JULY 2021

Application for termination of an enterprise agreement after its nominal expiry date – agreement terminated

[1] Mooloolaba Boost Pty Ltd T/A Boost Juice Mooloolaba (the Applicant) has made an application for the Fair Work Commission (the Commission) to terminate the Mooloolaba Boost Pty Ltd Enterprise Agreement 2009 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement had a nominal expiry date of 12 October 2014. The Applicant is the only employer covered by the Agreement. I note that the Form F24B – Application has noted that there are 15 employers. However, the Agreement is a single enterprise agreement and only covers the Applicant. Mr Wade Bonde, the owner of the Applicant, who completed the form mistook the question for the number of employees. This was confirmed in his email dated 27 July 2021.

[3] The Applicant indicated that there were no relevant employee organisations covered by the Agreement or representing their employees. No response was therefore requested or required.

[4] This matter is to be determined on the papers.

Applicant’s submissions

[5] The Applicant filed and relied on the F24C – Statutory declaration in support of the application, signed 3 February 2021, which provided that it seeks termination of the Agreement as it is outdated and hard to understand. Most Boost Juice stores are now operating under the Fast Food Industry Award 2010 (the Award) and the Applicant would like to be in line with those stores as there is more information available to the employer and the employees regarding the Award. Consequently, termination of the Agreement would mean that the guidelines are clearer for employees and the Applicant alike, the pay rates and conditions would be uniform with most other Boost Juice stores and it would simplify the software and process required for rostering, payroll, record keeping and compliance.

[6] The Applicant further submits that employees would be better off being covered by the Award instead of the Agreement. Mr Bonde states that this is largely due to the variety in rosters on a week-to-week basis and that the Agreement has not been reviewed since 2009. Most of the Applicant’s employees are school or university students, employed on a casual basis. Consequently, the staff work a variety of shifts being weekdays, weekends and public holidays that are all rostered around their individual roster requests to accommodate their schooling, sporting, family and social commitments. Consequently, there are no set rosters and each employee’s rostered days and hours change from week to week depending on their availability. The Store Manager is the only employee employed on a salary which has been a negotiated amount that is above the Award.

[7] When taking into account that all casual staff work a variety of weekdays and weekends that vary each weekly roster, the minimum shift hour increase, increased laundry allowance, and that the Award is updated and reviewed frequently and provides relevant benefits to the fast-food industry, the Applicant submits all current and future staff will be better off overall under the Award. The Applicant further submits that in all the circumstances, there is nothing within their knowledge that would make it contrary to the public interest to terminate the Agreement.

Consultation with staff

[8] Mr Bonde, the Applicant’s owner, filed with a letter that was sent to all employees. It set out the primary differences between the Agreement and the Award. He stated that the reason the Applicant wants to terminate the Agreement is that it has been around for a long time and the conditions of employment (other than rates of pay) are not reviewed regularly whereas the Fast-Food Industry Award is updated frequently, applies to many other employers in our industry, provides relevant benefits for fast-food employees, is easier to interpret that the Agreement and, as the Applicant remains committed to ensuring the best possible working environment for our Team Members, they believe the move to the Award is the right move. The letter informed Team Members that a Zoom Meeting would be held to discuss these matters in more detail and to answer any questions they may have about how it may affect their pay and working conditions.

[9] On 9 July 2021, Mr Bonde sent the Applicant’s staff an email attaching a letter of intention to terminate the Agreement and informed them that a meeting would be held on 12 July 2021 to discuss any questions that they may have.

[10] The Zoom meeting was held on 12 July 2021. All staff were emailed an invitation, and seven of the 11 staff attended. Four were unavailable. The slide pack presented at that meeting was included in the Applicant’s material. It set out the casual rates of pay under the Award, the additional laundry allowance and the change that the minimum shift would change from two hours to three. It confirms that the employees’ casual employment status will not change and they will remain employed with the Applicant. It then sets out in basic terms the process moving forward, including that they would be provided with the material lodged with the Commission and be offered the opportunity to provide their views. Mr Bonde invites staff to speak with him about the changes or to contact the Boost Juice Head Office HR Team by email.

[11] On 14 July 2021, Mr Bonde sent the Applicant’s staff an email attaching a copy of the Award rate table, stating that it would show the casual rates that staff would receive if the Applicant transitioned to being covered by the Award. It also provides a link to the Award itself and encourages staff to look over the document to ensure they understood the terms of the Award.

[12] On 19 July 2021, Mr Bonde sent the Applicant’s staff an email including the Directions issued by me on 1 July 2021, the Application (Form 24B) and its supporting statement (Form 24C) and informed them that if they wished to provide their view on the proposed termination, they could do so by contacting my Chambers by 4pm on 23 July 2021.

[13] At the time of writing, my Chambers have received no correspondence from the Applicant’s employees or anyone else in relation to the termination of this Agreement.

Consideration

[14] I am satisfied that on assessment of the materials filed in the Commission, the termination of the Agreement is not contrary to the objects of the Act. The materials filed satisfy me that this is so and that termination of the Agreement will not be contrary to the public interest. The Agreement has passed its nominal expiry date, and there will be no adverse effect on employees if the application is granted.

[15] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, I order that the Agreement be terminated.

[16] I order that the termination will operate from 1 August 2021.

DEPUTY PRESIDENT

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