Ms Hollie McAuley
[2017] FWC 2978
•6 June 2017
| [2017] FWC 2978 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date
Ms Hollie McAuley
(AG2017/1111)
MB AUSTRALIA PTY LTD - NEW SOUTH WALES - EMPLOYEE COLLECTIVE AGREEMENT 2009 - 2014
| Restaurants | |
| Deputy President Sams | SYDNEY, 6 June 2017 |
Application for termination of the MB Australia Ply Ltd- New South Wales- Employee Collective Agreement 2009 - 2014.
This is an application, filed on 3 April 2017, by Ms Hollie McAuley (the ‘applicant’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the MB Australia Pty Ltd – New South Wales – Enterprise Agreement 2009-2014 (‘the 2009 Agreement’). The nominal expiry date of the Agreement was 18 February 2014. The Agreement was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
The application was listed for mention and directions on 19 April 2017. At the mention, Ms McAuley appeared for herself, and Mr C Ni, Solicitor appeared for the Company, MB Australia Pty Limited with Ms C Ng, Recruitment Consultant. Mr Ni outlined the surrounding circumstances of the Agreement and the application. He explained that there is a separate enterprise agreement, the MB Australia Enterprise Agreement 2016 [PR578121] (the ‘2016 Agreement’), which covers employees of the Company who are not covered by this Agreement. Mr Ni said that if this Agreement is terminated, employees who are currently covered by the 2009 Agreement will then be covered by the 2016 Agreement. Mr Ni said that the Company does not oppose the application being granted. He explained how a similar application by one of the Company’s employees in Victoria had been made and granted by Commissioner Roe on 14 February 2017 (the Max Brenner – Victoria – Enterprise Agreement 2009-2013). Ms McAuley believed that employees would earn a higher rate of pay under the 2016 Agreement. Mr Ni agreed this would be the result.
I am satisfied that Ms McAuley is able to make the application and that the prerequisites for the application as set out in s 225 of the Fair Work Act 2009 (the ‘Act’) are met. I am further satisfied that the 2016 Agreement will apply because:
- Section 53(1) of the Act, which provides that an enterprise agreement covers and employee or employer if the agreement is expressed to cover (however described) the employee and employer ; and
- Clauses 2, 3.1(a) and 3.2 of the 2016 Agreement, which provides as follows:
‘2. PARTIES
The parties to this Agreement are:
2.1. MB Australia Pty Ltd (ABN 74 115 512 993) ("the Employer"); and
2.2.Subject to Clause 3, all employees employed by the Employer in the Job Classifications set out in this Agreement ("the Employees").’
‘3. EXISTING ENTERPRISE AGREEMENTS
3.1. The Employees exclude all employees to which the following enterprise agreements apply:
(a) The Max Brenner- Victoria- Enterprise Agreement 2009-2013;
(b) MB Australia Pty Ltd- Enterprise Agreement 2011- 2012; and
(c) MB Australia Pty Ltd- New South Wales- Employee Collective Agreement 2009- 2014.
3.2. If any enterprise agreement in Clause 3.1 is terminated under section 226 of the Act, employees who were covered by that terminated enterprise agreement will be covered by this Agreement.’
In determining this application, I am required to consider the following matters:
“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.”
I am satisfied that both the employer and employees support the application to terminate the Agreement. Given that the affected employees will be better off under the 2016 Agreement rather than the 2009 Agreement, it may be safely assumed that they would have no opposition to the termination of the 2009 Agreement. I have also taken into account the views of the employer and the likely effect on it, as outlined by Mr Ni. For completeness, I note that there is no employee organisation covered by either the 2009 Agreement or the 2016 Agreement. I have also taken into account the likely effect that the termination of the Agreement will have on each employee, which appears to be a wholly positive for employees, as it will improve wages and conditions. Accordingly, I am also satisfied that it is not contrary to the public interest to terminate the Agreement.
Having considered the application, the views of the parties and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. As the requirements of s 226 have been met, the Agreement must be terminated. Accordingly, the MB Australia Pty Ltd – New South Wales – Enterprise Agreement 2009-2014 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision.
ORDERS
Lastly, Mr Ni provided to Chambers a proposed notice to employees, explaining the effect of the termination of the Agreement. He also provided draft directions which included a draft order that required the Company to provide a copy of the following documents to all affected employees:
- the proposed directions;
- the Form F24B – application for termination of enterprise agreement; and
- an employer notice explaining the effect of the termination, in particular, their transfer to the 2016 Agreement.
While I do not consider it necessary to issue these orders, I expect that the Company will provide employees with the notice explaining the impact of the decision to terminate the Agreement on them and also hold information sessions similar to those it conducted in relation to the Max Brenner – Victoria – Enterprise Agreement 2009-2013, when it was terminated.
DEPUTY PRESIDENT
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