Mr Sarder

[2015] FWCA 6447

[2015] FWCA 6447

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

Mr Sarder
(AG2015/4723)

LOVELY PANCAKES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Restaurants
COMMISSIONER ROE	MELBOURNE, 16 SEPTEMBER 2015

Application for termination of the Lovely Pancakes Pty Ltd Employee Collective Agreement 2007.

[1] The Application to terminate this Agreement has been made by Mr Sarder. Mr Sarder is an employee covered by the AgreementLovely Pancakes Pty Ltd Employee Collective Agreement 2007. The Agreement covers twelve restaurants and approximately 750 employees. The nominal expiry date of the Agreement was in or around August 2012. The Agreement was reached under the Workplace Relations Act 1996 (Work choices). The Application to terminate the Agreement has been made under Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The provisions of Section 225 of the Fair Work Act 2009 apply by reason of Schedule 3 item 16. The Application was not opposed by the employer, Lovely Pancakes Pty Ltd. If the Agreement is terminated the Restaurant Industry Award 2010 will apply to the employer and the employees. There is no union covered by the Agreement.

[2] I am satisfied by the evidence of Mr Sarder and the submissions of the employer that:

● Mr Sarder has made extensive efforts to obtain the views of employees. He established a facebook page involving some 200 employees of Lovely Pancakes. There may have been a few former employees included in that number. He gave evidence that none of these employees opposed the application.

● Lovely Pancakes accepted that employees were generally aware of the Application.

● The hearing of this matter was publicly listed and a number of employees attended the hearing.

● Employees will generally be entitled to a range of benefits if the Restaurant Award applies when compared to the Agreement. This includes: penalty rates for weekend and night work, access to overtime payments when working additional hours, higher base rates of pay, greater certainty of working hours, uniform laundry costs, overtime meal allowance, improved breaks, and minimum breaks between shifts.

● The employer may pay some employees more than the rates specified in the Agreement but those additional payments are not enforceable under the Agreement.

● There are no obvious disadvantages to employees if the Award applies when compared to the Agreement. However, the employer may introduce changes in response to the additional costs imposed by the Award and there may be different arrangements in respect to shift swaps, roster changes and the working of additional hours.

● The move to the Award will involve additional costs to the employer and will require some administrative changes. However, the employer does not oppose the move.

[3] I have followed each of the requirements of Section 226 of the Act. I am satisfied that it is not contrary to the public interest to terminate the Agreement. It is in the public interest that employees receive the benefit of the minimum standards in the Modern Award or are covered by an Agreement which passes the Better Off Overall Test.

[4] I am also satisfied that it is appropriate to terminate the Agreement taking into account all of the circumstances including the views of the employer and the employees. The employer does not oppose the termination. I do not consider it necessary to order a ballot or survey of all employees in the circumstances of this case. I am satisfied by Mr Sarder’s evidence and the submissions of Lovely Pancakes that employees were aware of the application and have not generally opposed it. I accept the evidence of Mr Sarder that there is considerable employee support for the Application. I have also had regard to the circumstances of the employer and the employees and the likely effect that the termination will have on them. The employer does not oppose the application and the employees will generally enjoy enhanced wages and conditions.

[5] The bar to be met in determining to terminate an agreement is relatively high. It is higher than the tests required under the previous legislation. However, I am satisfied that in this case the public interest consideration is strongly in favour of the termination of the Agreement. Employees will have the opportunity should they wish to seek to bargain for a new agreement which must meet the BOOT.

[6] The requirements of Section 226 having been met the Agreement must be terminated.

[7] The employer is seeking that the termination operate from 15 November 2015. They are seeking this time to be able to put in place the required administrative and payroll changes. Employees will need to be classified under the Award. The classifications are different to those under the Agreement. The process for fixing and changing working hours will need to change. The employer is also seeking time to consult with employees about the necessary changes. Mr Sarder indicated that he did not oppose the time period and that he would be seeking to have the employer negotiate a replacement enterprise agreement. The employer does not agree to bargain for a replacement agreement at this stage. I consider that the termination of the Agreement should operate from 15 November 2015.

[8] The Agreement is terminated from 15 November 2015.

COMMISSIONER

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