Nando’s Australia Pty Ltd
[2022] FWCA 219
•27 JANUARY 2022
| [2022] FWCA 219 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Nando’s Australia Pty Ltd
(AG2021/9040; AG2021/9041; AG2021/9042; AG2021/9043; AG2021/9044; AG2021/9045)
Nando’s Australia Workplace Agreement (Western Australia) 2008; Nando’s Australia Victoria Workplace Agreement 2008; Nando’s Australia Victoria Workplace Agreement 2008; Nando’s Australia Workplace Agreement (South Australia) 2008; Nando’s Australia Workplace Agreement (QUEENSLAND) 2008; Nando’s Australia Workplace Agreement NEW SOUTH WALES
| Fast food industry | |
| COMMISSIONER WILSON | MELBOURNE, 27 JANUARY 2022 |
Application for termination of the Nando’s Australia Workplace Agreements (Western Australia) 2008 – Application for termination of the Nando’s Victoria Workplace Agreements 2008 – Application for termination of the Nando’s Victoria Workplace Agreements 2008 – Application for termination of the Nando’s Australia Workplace Agreements (South Australia) 2008 – Application for termination of the Nando’s Australia Workplace Agreements (Queensland) 2008 – Application for termination of the Nando’s Australia Pty Ltd Workplace Agreements (New South Wales)
On 16 December 2021, six applications (the Applications) were made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate: Nando’s Australia Workplace Agreement (Western Australia) 2008; Nando’s Australia Victoria Workplace Agreement 2008; Nando’s Australia Victoria Workplace Agreement 2008; Nando’s Australia Workplace Agreement (South Australia) 2008; Nando’s Australia Workplace Agreement (QUEENSLAND) 2008; Nando’s Australia Workplace Agreement NEW SOUTH WALES (the Agreements). A ‘Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date’ (Form F24C) was filed in support of each Application.
In correspondence to the Fair Work Commission on 16 December 2021, Mr Shaun Kelleher, counsel for Nando’s Australia Pty Ltd (the Applicant), requested that the Commission deal with the Applications jointly as each application related to an expired collective agreement-based transitional instrument covering the Applicant, was in similar terms and covered employees of the Applicant performing the same work in different states. Accordingly, I have chosen to manage and determine the matters jointly.
The Agreements are collective agreement-based transitional instruments made under the repealed Workplace Relations Act 1996 (Cth).
Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) provides that subdivision D of Division 7 of Part 2-4 of the Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
Legislation
The relevant provisions of the Act are as follows:
“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.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
Consideration – s.225
Is the Applicant an employer covered by the Agreements?
Clause 3 of the Agreements names “Nando’s Australia Pty Ltd” as a party to the Agreement and specifies the ABN as 20 079 066 407. The Applicant is “Nando’s Australia Pty Ltd” with the 079 066 407 and ABN 20 079 066 407. The name “Nando’s Australia Pty Ltd” is registered and linked to the ACN 079 066 407 and ABN 20 079 066 407. I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.
Has the Agreements passed its nominal expiry date?
Clause 5.1 of the Agreements provides that the Agreement takes effect from a date to be determined by the Workplace Authority. Clause 5.2 of the Agreements provides that the Agreement shall remain in force for a period of five years from that date. Having considered the materials before the Commission and clause 5 of the Agreements, I am satisfied the Agreements have passed their nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreements.
Section 226(b) – Appropriateness
The Application indicates that only one employer is covered by the Agreement.
Ms Rachel McIver, Chief People Officer of Nando’s ANZ, declares in the Form F24C for the Applications that:
· Termination of the Agreement would enable a single industrial instrument – the Fast Food Industry Award 2010 (FFIA) – to be applied to all corporate restaurant based employees across Australia.
· The Agreement reflects an outdated approach to penalty rates that, although lawful, is out-of-step with contemporary industry, community and employee expectations.
· Nando’s has proactively introduced employee benefits outside of the Agreement (eg, FFIA penalty rates and agreed regular work patterns), which could become confusing and cumbersome to manage in circumstances where the Agreement continues to apply.
Ms McIver provided further detail on the above points in a witness statement filed with the Commission on 16 December 2021.
Having considered the differences between the Award and Agreements it is also apparent to me that the conditions in the Award are, in a general sense and when considered together, superior to those within the Agreement.
On 24 December 2022, the Commission directed that:
· By 4pm on Monday, 10 January 2022, Nando’s Australia Pty Ltd (Nando’s) must:
· provide a copy of these directions to all employees covered by the Nando’s State Based Collective Agreements, together with a copy of the respective Form F24B and Form F24C filed by Nando’s in the Fair Work Commission in support of its application to terminate the Agreements;
· provide all employees covered by the Nando’s State Based Collective Agreements with any undertakings it proposes to give the Fair Work Commission in support of its application for termination of the Agreements. To that end, reference is made to the answer to question 2.3 of the Forms F24C filed by Nando’s which in turn refer to the Statement of Rachel McIver. A copy of that Statement must be provided to employees as well; and
· inform, in writing, the employees covered by the Nando’s State Based Collective Agreements that they have until 4pm on 21 January 2021 to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement.
· By 4pm on Friday, 14 January 2022, Nando’s must file in the Fair Work Commission a statutory declaration setting out the steps it took to comply with direction 1 above, together with any undertakings it wishes to give the Fair Work Commission in support of its application for termination of the Nando’s State Based Collective Agreements. The Statutory Declaration must also address what Nando’s understand the financial effect of termination to be and also address the Modern Award Nando’s submits has application to the work of its employees in the event the Agreements are terminated.
· By 4pm on Friday, 21 January 2022, any employee covered by the Nando’s State Based Collective Agreements who either opposes the termination of the Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the Agreements, must file in the Commission any submissions, written statements and documents they wish to rely on in relation to the application to terminate the Agreement. Any such material may be filed in the Commission by emailing it to [email protected].
On 10 January 2022, an email was received from an employee at a Nando’s in Epping. He suggested that he was happy with the proposed termination of the agreement applying to him on the basis that he was receiving less than his contracted rate of pay and believed the shift in the Award underpinning the agreement would benefit him in the future.
On 14 January 2022, the Applicant filed statutory declarations of Ms Rachel McIver, Chief People Officer Nando’s ANZ, and Mr Evan Dimitriou, Chief Financial Officer Nando’s ANZ, confirming compliance with the above directions.
Ms McIver provided evidence of the steps taken by the Applicant on 10 January 2022 to comply with Direction 1 above. That evidence is, in summary, as follows:
· an email to all the Applicant’s collective agreement covered employees on containing the Directions dated 24 December 2021, a copy of the Applications, a copy of the F24C’s and a copy of Ms McIver’s statutory declaration;[1]
· a mandatory notice on the Applicant’s intranet page.[2] Mandatory in this sense means employees could not access the intranet page without viewing the notice; and
· a memo sent to each Restaurant Manager attaching the Directions dated 24 December 2021, a copy of the Applications, a copy of the F24C’s and a copy of Ms McIver’s statutory declaration. The memo was posted to the respective Restaurant’s communications boards. The mandatory notice and the email notification were referred to in the memo, as well s the undertaking discussed below.
The email, the mandatory notice and the memo confirmed in writing that covered employees would have until 4:00pm on 21 January 2021 to inform the Commission of their views in relation to the Applications.
Ms McIver stated that the Applicant currently pays collective agreement covered employees the base rate of pay for the equivalent classification under the RIA (as at 31 October 2021) or the base rate of pay for the equivalent classification under FFIA (as at 1 November 2021), whichever is higher.[3] In light of this, Ms McIver, on behalf of the Applicant, gave the following undertaking:
“Nando’s undertakes to the FWC to pay whichever the higher base rate of pay is under the RIA (as at 31 October 2021) or the FFIA (as at 1 November 2021) so that no Collective Agreement covered employee experiences a reduction in their base rate as a result of the termination of the Collective Agreements, which will stay as it is until the FFIA rate exceeds the RIA rate (as at 31 October 2021) or is otherwise increased by Nando’s for other reasons (for example a promotion)”[4]
Mr Dimitriou addressed the financial effect of the termination on the Applicant. In so doing, he focused solely on the expected cost to the business of associated with a shift to the new underpinning Award and otherwise made no submissions on the financial effect of termination. He states that the Applicant’s labour costs are going to increase by 6% as a result of the shift in the underpinning Award. Given the undertaking above, I am satisfied that this provides me with sufficient information to consider the appropriateness of the Application.
I am satisfied that the Applicant complied with the Direction dated 24 December 2021 and I am further satisfied, on the basis of the Applicant’s compliance with the Directions and the additional undertaking, that the termination of the Agreements is appropriate.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 27 January 2022. An Order[5] to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] Witness statement, Rachel McIver, Annexure RM1.
[2] Ibid, Annexure RM2.
[3] Ibid at [17].
[4] Ibid at [18].
[5] PR737829.
Printed by authority of the Commonwealth Government Printer
<AC313148; AC313149; AC313171; AC318403; AC38442; AC323806, PR737799>
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