Nadya Crawshaw
[2020] FWC 5922
•10 NOVEMBER 2020
| [2020] FWC 5922 |
| 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
Nadya Crawshaw
(AG2020/2459)
&
Sophia Crawshaw
(AG2020/2461)
THE BADERUP PTY LTD (FOOD AND BEVERAGE) EMPLOYEE COLLECTIVE AGREEMENT 2009
Hospitality industry | |
DEPUTY PRESIDENT BINET | PERTH, 10 NOVEMBER 2020 |
Applications for the termination of the Baderup Pty Ltd (Food & beverage) Employee Collective Agreement 2009.
Introduction
[1] Ms Nadya Crawshaw and Ms Sophia Crawshaw (Applicants) have made applications (Applications) to the Fair Work Commission (FWC) to terminate the Baderup Pty Ltd (Food & Beverage) Employee Collective Agreement 2009 (Agreement). 1
[2] The Agreement was approved in 2009 pursuant to the Workplace Relations Act 1996 (Cth) and commenced operation seven days after the Workplace Authority issued a notice confirming that the Agreement passed the No Disadvantage Test. The Agreement had a nominal expiry date of five years from the date it came into effect.
[3] The parties to the Agreement are Baderup Pty Ltd (Baderup) and employees engaged by Baderup in the classifications set out in the Appendix of the Agreement.
[4] There are no employee organisations party to, or covered by, the Agreement.
[5] For the purposes of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of Schedule 3 of the Transitional Act, the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (Cth) (FW Act).
[6] Both applications were supported by a statutory declaration from the Applicants (Crawshaw Declarations).
[7] On 1 September 2020, directions were issued with respect to the Application (Directions). The Applicants was directed to file an outline of submissions in support of the Application and any evidence on which they relied by 10 September 2020. Baderup were directed to file an outline of submissions in response to the Application and any evidence on which Baderup sought to rely by 17 September 2020.
[8] The Directions also required Baderup to provide a copy of the materials filed by the parties in accordance with the Directions and a copy of the Directions to each of the Employees. The Directions contained an invitation for any of the Employees who wished to be heard in relation to the Application to contact Chambers by 24 October 2020. None of the Employees contacted Chambers by this date or by this date of this decision.
Legislation
[9] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.
[10] Section 225 of the FW Act provides that:
“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.”
[11] As the Agreement had passed its nominal expiry date and the Applicants are employees covered by the Agreement, I find that the Applicants have standing to make the Application pursuant to section 225(b) of the FW Act.
[12] Section 226 of the FW Act states:
“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
the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”
Consideration
Is it contrary to the public interest to terminate the Agreement?
[13] Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.
[14] This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standard. 2
[15] There is no positive onus on the applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd (AIRC) 5 September 2003, Commissioner Wheelan said:
“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”
[16] The public interest is distinct in nature from the interests of those covered by the Agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight. 3
[17] The object of the FW Act is set out in section 3 of the FW Act, as follows:
“3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
…
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;
…
(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;
…”
[18] The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2-4 of the FW Act:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
[19] The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests. 4
[20] The Applicants submit that there are no matters contrary to the public interest in terminating the Agreement and that, rather, there are factors that are in the public interest in terminating the Agreement that may be considered by the Commission.
[21] For example, the Applicants submit that the terms of the Agreement do not reflect current minimum statutory entitlements and that therefore termination of the Agreement will ensure the maintenance of proper industrial standards.
[22] There was a degree of contention between the Applicants and Baderup as to the award that would apply in the event that the Agreement was terminated. The Applicants purport that the Restaurant Industry Award 2020 5is the relevant instrument for this comparison. Baderup submitted that the appropriate award is the Fast Food Industry Award 2010.6However, the parties agree that Employees would be better off if either Award applied.
[23] Based on the submissions of the parties and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
What are the views of the Employees covered by the Agreement?
[24] According to Baderup it currently employs ten employees who are covered by the Agreement.
[25] The Directions required Baderup to provide a copy of the Application, the materials filed by the parties in accordance with the Directions and the Directions to each of the Employees. The Directions contained an invitation for any of the Employees who wished to be heard in relation to the Application to contact Chambers by 24 October 2020.
[26] A statutory declaration was filed by Mr Graham Lilleyman, dated 21 September 2020, that declared all materials were served on the Employees by 17 September 2020. None of the Employees (other than the Applicants) contacted Chambers by this date or by this date of this decision.
[27] Baderup report that they also invited the Employees to raise any concerns in relation to the Agreement termination with it and also report that no Employees raised any issues.
[28] In addition to their own views in favour of the termination of the Agreement the Applicants filed a statutory declaration by one of their work colleagues confirming that she too also supported the termination of the Application.
What are the views of the Employee Organisation covered by the Agreement?
[29] There are no employee organisations party to, or covered by, the Agreement.
What are the views of the Employer covered by the Agreement?
[30] Baderup support the termination of the Agreement, but have requested a one month period before the termination takes effect so as to allow for human resource and payroll systems to be modified to reflect the change in employment conditions and rostering and work practices to be reviewed to ensure the ongoing viability of the business.
What are the circumstances of the Employees covered by the Agreement?
[31] The Employees are predominantly quite young with limited understanding of their legal entitlements and as casual employees have limited job security. The parties agree that regardless of which Award applies to the Employees that the Employees would be better off if the Agreement were terminated. For example, the Applicants submit that if the Agreement is terminated and the Restaurant Industry Award applies Employee workplace conditions and benefits would improve in a number of ways including that:
a. Employees will receive an unpaid meal break and paid rest break that is not always available under the Agreement, due to the requirement under the Agreement that all break are taken when they meet the operation requirements of the business.
b. Employees would be entitled to a 30 minute unpaid break after 5 hours rather than 6 hours under the Agreement.
c. Employees employed on a casual basis who would not entitled to public holiday penalty rates under the Agreement, but would receive penalties under the Award.
What are the circumstances of the Employee Organisation covered by the Agreement?
[32] No employee organisations are a party to, or covered by, the Agreement.
What are the circumstances of the Employer covered by the Agreement?
[33] Baderup report that COVID19 has adversely impacted on its business and that it is currently in receipt of Jobkeeper subsidies. It says that adjustments to rostering and operational practises would be necessary to ensure the viability of the business in the short and medium term if the Agreement were terminated. It also says that Agreement termination would require significant upgrades to its payroll system.
Is it appropriate to terminate the Agreement taking into all the circumstances?
[34] In assessing the views and circumstances of the parties it is important to remember that: 7
“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.”
[35] The Agreement came into effect 11 years ago and is now more than 6 years past its nominal expiry date. It does not reflect current industry standards and therefore the desire on the part of the Applicants to terminate the Agreement is reasonable. Given the impact of COVID19 on the hospitality sector in particular, the concerns of Baderup about the impact on the termination of the Agreement on it also appear legitimate.
[36] In all the circumstances I believe it prudent to allow a period of one month before any termination take effect.
Conclusion
[37] For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement. On the contrary, based on the submissions of the parties the termination of the Agreement would improve employment conditions.
[38] Taking into account all the circumstances, including the views and circumstances of Baderup and the Employees, I am satisfied that it is appropriate to terminate the Agreement.
[39] Accordingly, the Agreementis terminated. The termination is to take effect on and from Tuesday, 8 December 2020. An Order to this effect will be issued in conjunction with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AC324793 PR724288>
1 CAEN096174181; AC324793.
2 Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 at 40 – 41.
3 Ibid.
4 Kellogg Brown & Root Pty Ltd & Ors and Esso Australia Ltd (2005) 139 IR 34 referred to the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393
5 MA000119.
6 MA000003.
7 Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWA 2434 at [16].
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