Popolo Italian Kitchen & Bar Pty Ltd T/A Popolo
[2022] FWCA 3139
•21 SEPTEMBER 2022
| [2022] FWCA 3139 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Popolo Italian Kitchen & Bar Pty Ltd T/A Popolo
(AG2022/3640)
Popolo - Enterprise Agreement 2013
| Restaurants | |
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 SEPTEMBER 2022 |
Application for termination of the Popolo - Enterprise Agreement 2013 – Agreement terminated.
On 30 August 2022, Popolo Italian Kitchen & Bar Pty Ltd trading as Popolo (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Popolo – Enterprise Agreement 2013 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 1 December 2016.
The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals. The Applicant has 35 employees covered by the Agreement.
There are no unions covered by the Agreement.
Consultation with employees
On 27 July 2022, the Applicant held a meeting with all employees to discuss the proposed termination of the Agreement. The meeting was conducted by Mrs Charmaine Manewell, People and Culture Manager, and Ms Kelly Fehlberg, Group Operations Manager.
During the meeting, employees were provided with the following verbal advice:
(a)the Agreement had nominally expired on 1 December 2016;
(b)the Applicant proposed to terminate the Agreement, and intended to ask the employees to vote on whether they agreed with this proposal;
(c)should employees vote to terminate the Agreement, their employment would instead by covered by the Restaurant Industry Award 2020 (the Award);
(d)if the Agreement was terminated, the Applicant would agree to retain any employee’s ordinary hourly rate of pay, where that rate of pay would exceed their ordinary hourly rate under the Award; and
(e)employees would be asked to vote regarding the proposed termination via a ballot on Friday, 5 August 2022 from 9.00 am to 5.00 pm.
Employees were advised to direct any questions regarding the proposed termination of the Agreement to Mrs Manewell, who would be compiling all questions and providing answers in one document to be circulated amongst all employees.
Physical copies of the Award and the Agreement were provided to the employees in the meeting for their consideration.
On 27 July 2022, employees were hand-delivered a letter confirming the information verbally provided to them in the meeting on 27 July 2022 and invited employees to attend a second staff meeting to be held the following week. A copy of the letter was also emailed to all employees, along with a copy of the Agreement and the Award.
On 3 August 2022, a second staff meeting was held to address questions raised by employees since the first meeting, and to discuss any additional queries from employees. This meeting was conducted by Ms Manewell.
Following the second meeting, the Applicant compiled a Q&A document, which captured all questions raised by employees up to, and during, the second staff meeting on 3 August 2022. This document was emailed to all employees on 4 August 2022. Attached to this email was also the Award, the Agreement, and the Restaurant Industry Award Pay Guide (the Pay Guide) so that employees could more easily identify the rates of pay payable under the Award for the hours they commonly worked. The email also noted that, following feedback from employees, the time to vote in the ballot would be extended by one hour, closing at 6:00pm on 5 August 2022.
On 5 August 2022 at 9.00 am, Mrs Manewell attended the workplace and set up and maintained a physical voting station where employees who attended:
(a)collected an authorised voting slip, which slips were made available at the voting station; and
(b)cast their vote by placing their completed voting slip into a physical ballot box.
On 5 August 2022 at 6.00 pm, the ballot closed. The ballot box was opened and voted tallied. Of the Applicant’s 35 employees, 27 casted a valid vote. All 27 employees who voted approved the termination.
Consideration
Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
The application was filed with the Commission 25 days after the termination of the Agreement was agreed to. However, pursuant to s. 222(3)(b) of the Act, the application may still be approved if in all the circumstances, the Commission considers it fair to extend that period—within such further period as the Commission allows.
The Applicant’s representative submissions are summarised below.
(a)All employees who cast a valid vote, agreed to the termination of the Agreement. If the Commission were to grant an extension of time, it would deny those employees the effect of the vote.
(b)The Agreement reached its nominal expiry date in 2016, and while the Applicant had continued to apply percentage pay increases post-2016 which were consistent with the annual minimum wage percentage increase, the Agreement itself provided no express mechanisms for such increase.
(c)There is a public interest in not allowing an Agreement to be set and forgotten in circumstances where it may potentially may not keep pace with the modern award safety net, in which awards are subject to four-yearly reviews.
Seeking to explain why the application was delayed, the Applicant’s representative submitted that the Applicant’s management team, who also operate a number of associated businesses, have faced an unusually busy operating period, including the launch of a new restaurant.
Considering the above submissions, I am satisfied that it would be fair in all the circumstances to grant an extension of time to file the application.
Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement if:
“(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
Based on the material contained in the declaration filed with the application, I am satisfied the requirements of s.223 have been met. The Commission is therefore obligated to terminate the Agreement.
Section 224 of the Act states that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement. In accordance with s.224, I have determined that the Agreement will be terminated from 11.59 pm on 30 September 2022 with 1 October 2022 being the first day that the applicable modern awards will apply.
Access to a copy of this Decision is to be provided to the relevant employees for their information.
DEPUTY PRESIDENT
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