Subsational Pty Ltd T/A Zarraffa’s Coffee Acacia Ridge
[2023] FWCA 1184
•26 APRIL 2023
| [2023] FWCA 1184 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Subsational Pty Ltd T/A Zarraffa’s Coffee Acacia Ridge
(AG2023/1016)
SUBSATIONAL PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008
| Fast food industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 26 APRIL 2023 |
Application for termination of the Subsational Pty Ltd Employee Collective Agreement 2008
Subsational Pty Ltd T/A Zarraffa’s Coffee Acacia Ridge (Subsational) made an application for the termination of the Subsational Pty Ltd Employee Collective Agreement 2008 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover fast food employees engaged in the preparation and sale of food and beverages, whilst in training, whilst competent and whilst in a supervisory capacity.
Sections 225 of the Act, and 226 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) 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 Terminating an enterprise agreement after its nominal expiry date
(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c)all of the following apply:
(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2)This subsection covers a termination of the employment of an employee:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a)the employees (unless there are no employees covered by the agreement);
(b)each employer;
(c)each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4)In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”
The application was accompanied by a F24C declaration completed by Ms Nicole Luchterhand (Director). Ms Luchterhand provided the following reasons for the termination of the Agreement:
(d)the employees will be better off under the provisions of the Fast Food Industry Award;
(e)since the expiry of the current Agreement there have been significant amendments to the Fast Food Award in favour of employees;
(f)It would be unfair to employee if the Agreement were to continue operating given the more beneficial terms and conditions of the Award which now refers to the Fair Work Act rather than the former Workplace Relations Act 1996 (Cth), provides greater penalty rates, overtime rates and other allowances; and
(g)The Award refers specifically to the National Employment Standards
The application and declaration (Forms F24B and F24C) were served on the employees still covered by the Agreement on 14 April 2023 and the employees were invited to provide any submissions, either for or against the termination of the Agreement by no later than 24 April 2023. No responses were received.
The employer has applied for the termination of the Agreement.
There is no employee organisation covered by the Agreement whose views or circumstances I can take into account.
I am satisfied that the agreement does not, and is not likely to, cover any employees (per s.226(1)(b)). I am satisfied that none of the criteria in s.226(4) are applicable in this matter and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).
The termination will operate from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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