Riley Joseph Spencer
[2022] FWCA 929
•17 MARCH 2022
| [2022] FWCA 929 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument
Riley Joseph Spencer
(AG2022/317)
The Geoway Investments Pty Ltd Collective Agreement Number One (2006)
| Fast food industry | |
| COMMISSIONER HAMPTON | ADELAIDE, 17 MARCH 2022 |
Application for termination of the Geoway Investments Pty Ltd Collective Agreement Number One (2006)
This decision concerns an application by Mr Riley Joseph Spencer in effect, under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Geoway Investments Pty Ltd Collective Agreement Number One (2006)[1] (the Collective Agreement). The Collective Agreement was approved under Part 8 of the Workplace Relations Act 1996 (Cth) in 2006 by the then Employment Advocate[2]. The Collective Agreement had a nominal expiry date 5 years from the date of commencement.
The Collective Agreement presently covers and applies to the employer cited in the Collective Agreement, Geoway Investments Pty Ltd (Geoway or the Respondent), and its employees, including Mr Spencer. The Collective Agreement operates to provide certain terms and conditions of employment at a Subway franchise conducted by Geoway in the Adelaide Central Business District. Ms Georgie Koehne, is, in effect, the store owner.
A hearing by telephone was conducted in this matter on 17 March 2022. The Applicant represented himself. Ms Koehne, appeared for Geoway, which based upon advice it had received, did not oppose the application. At the conclusion of that hearing, I expressed my intention to terminate the Collective Agreement and indicated that I would subsequently provide a written decision.
The Collective Agreement is a collective agreement-based transitional instrument[3] for the purposes of the Fair Work (Transitional Provisional and Consequential Amendment) Act 2009 (the Transitional Act). This means, in effect, that the Collective Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards and the minimum base rates provide by any modern award covering the parties. In this case, the Fast Food Industry Award 2010[4] (Fast Food Award) covers the parties although it does not presently apply to them due to the continued operation of the Collective Agreement.[5]
The practical result of these arrangements is that for some years the base rate set out from time to time in the Fast Food Award has been applied to the hours of work and related terms of the Collective Agreement, which did not provide any specific additional payments for work on weekends and public holidays. I observe that the Collective Agreement was approved at a time when the approval criteria did not require that it be assessed against an award safety net test.[6]
Item 16 of Schedule 3 of the Transitional Act provides that an agreement of this kind may be terminated by the Commission under Part 2-4 of the FW Act.
Subdivision D of Division 7 of Part 2-4 of the FW Act provides:
“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.”
The application was accompanied by a statutory declaration of Mr Spencer. Further, an outline of the Applicant’s position was filed with the Commission with an accompanying current roster that applies at the store. The statutory declaration and outline of position set out the grounds for the application to terminate the Collective Agreement. Those grounds included contentions to the effect of the following:
·The Collective Agreement is outdated, and the terms and conditions disadvantage employees covered by it;
·The Collective Agreement would not meet the conditions of the Better Off Overall Test (BOOT);[7]
·The Collective Agreement restricts penalty rates on the weekend and public holidays which would otherwise apply under the Fast Food Award;
·Termination of the Collective Agreement would provide improved pay for all employees; and
·The Respondent employer is not seeking to negotiate a new Enterprise Agreement.
Given the status of the Collective Agreement, the Applicant is entitled to apply for its termination under s.225 of the FW Act. That is, although the precise nominal expiry date is not known, the Collective Agreement has now operated for many years after that latest possible expiry date[8] and the Commission can safely proceed on the basis that it has passed that date.
In the lead up to the hearing of this matter, directions were issued requiring the Respondent to ensure that any affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement. The Commission was not advised of any affected employee, save for the Applicant, wishing to make a contribution. I am satisfied that the other employees concerned do not oppose the application.
I am satisfied that the thrust of Mr Spencer’s position is correct and that this supports the granting of the application.
I observe that the statutory environment in which the Collective Agreement now operates is significantly different to that in which it was approved. The continued operation of the Collective Agreement also prevents the full legal application of the safety net Fast Food Award.[9]
Employees will not be disadvantaged by the termination of the instrument and the formal conclusion of the Collective Agreement is not opposed by the Respondent employer.
Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Collective Agreement. I am also satisfied that it is appropriate in all of the circumstances, including having regard to the views of the relevant parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Collective Agreement.
The Respondent sought short delay to enable it to prepare for the application of the Fast Food Award given the extent of the new payroll related changes required and the impact of the upcoming Easter holiday period. This was not opposed by Mr Spencer. I observe that the franchise is not intending to open on the public holidays concerned and that the termination date proposed coincides with the end of a relevant pay period.
The Collective Agreement is terminated, and the termination will take effect on and from 11:59 pm on Tuesday 19 April 2022.
COMMISSIONER
[1] AC300663.
[2] The Employment Advocate was an Australian Government Statutory Agency that was in existence until 1 July 2007.
[3] Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.
[4] MA000003.
[5] s.47 and s.48 of the FW Act.
[6] A no disadvantage test was later applied to such agreements under the Workplace Relations Act 1996.
[7] Section 193 of the FW Act for the approval of Enterprise Agreements.
[8] The Collective Agreement was approved by no later than 1 July 2007.
[9] Item 28 of Schedule 3 of the Transitional Act – the Collective Agreement prevails over the modern – subject to the minimum standards of the FW Act.
Printed by authority of the Commonwealth Government Printer
<AC300663 PR739395>
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