Ms Jolyn Pasterczyk

[2020] FWCA 828

[2020] FWCA 828

FAIR WORK COMMISSION

DECISION

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

Ms Jolyn Pasterczyk
(AG2019/5075)

CAMPRENT PTY LTD COLLECTIVE AGREEMENT 2009

Hospitality industry
COMMISSIONER SPENCER	BRISBANE, 5 MARCH 2020

Application for termination of the Camprent Pty Ltd Collective Agreement 2009.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Mr John Pasterczyk (the Applicant) to terminate the Camprent Pty Ltd Collective Agreement 2009 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 11 January 2015.

[3] Further, ss.225 and 226 of the FW Act relevantly provide:

“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 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.”

[4] Initial Directions were issued, requiring that the Applicant provide further information addressing the criteria in s.226 of the Act.

[5] The Applicant provided a Form F24C Statutory Declaration in support of the application to terminate the Agreement. The Applicant sought the termination on the basis that the Hospitality Industry (General) Award 2010 (the Award) provided more beneficial conditions and entitlements for employees.

[6] The Applicant stated that the termination of the Agreement would not be contrary to the public interest as there are minimal public interest matters relevant to the termination of the Agreement. The Applicant further stated that the termination of the Agreement would in the public interest, as the Agreement had passed its nominal expiry date, the Agreement provides for terms and effects that are lower than the Award minimums and community standards, and that the Agreement undermines the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions provided by Modern Awards.

[7] The Applicant further submitted that if the Agreement were to be terminated, employees’ conditions would be prescribed by the Award. It was submitted that the Agreement does not offer better conditions to the award in relation to the following:

•  “The Agreement does not allow for permanent employment, with all employees under the Agreement being employed as casuals;

•  The Agreement does not allow for casual conversion;

•  The classification structure under the Agreement does not mirror the classification structure under the Award;

•  Penalty rates for work on public holidays are lower under the Agreement when compared to the Award; and

•  Other allowances under the Agreement are lower in comparison with the Award.”

[8] Mr Simon Ong, Industrial Officer for the United Workers Union (the Union) also provided a Form F24C Statutory Declaration in support of the application to terminate the Agreement.

[9] Mr Ong submitted that letters were sent to the 10 named employees of the Employer containing the following:

•  A copy of the application in relation to this matter, including the statutory declaration in relation to termination of an enterprise agreement after the expiry date;

•  A copy of the directions issued in relation to this matter; and

•  A comparison table that summarised and compared the conditions between the Agreement and the Award, including a calculation of gross pay under the Agreement and the Award based on a sample roster.

[10] Mr Ong also sent a separate copy of this correspondence to the Respondent, requesting the assistance of the Respondent in placing the comparison material and enclosures in a prominent place in the workplace.

[11] Mr Ong stated that he received three responses from employees, indicating that they did not support the termination of the Agreement.

[12] The Respondent was represented by the Queensland Hotels Association (QHA). Ms Joanna Minchinton, Employment Relations Manager for QHA provided correspondence in response to the Directions, confirming that the Respondent was in support of the application to terminate the Agreement. The Respondent had sought to have the termination take effect on 29 March 2020, in order to align with the Respondent’s payroll system. Mr Ong confirmed that the Applicant did not object to this proposed date and time for the termination to take effect.

[13] The Respondent was directed to provide evidence that the views of the employees had been sought in relation to the application. In response, Ms Minchinton provided correspondence demonstrating that the three employees who had initially expressed their disapproval of the termination had been consulted, along with two additional employees that had expressed their disapproval to the Union, in relation to their concerns. A document was provided that was signed by these five employees, demonstrating that they had been consulted about the termination application and formally withdrawing their objections to the termination.

[14] Ms Minchinton further provided a copy of a memo that was distributed in the workplace by the Respondent, confirming their support for the termination application, and detailing the effect it would have upon their employment conditions.

CONCLUSION

[15] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 29 March 2020.

[16] I Order accordingly.

COMMISSIONER

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