Taphouse Pty Ltd

[2015] FWCA 3703

[2015] FWCA 3703

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

Taphouse Pty Ltd
(AG2015/2649)

TAPHOUSE PTY LTD COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER SPENCER	BRISBANE, 12 JUNE 2015

Application for termination of the Taphouse Pty Ltd Collective Agreement 2009.

[1] Taphouse Pty Ltd (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Taphouse Pty Ltd Collective Agreement 2009 1 (the Agreement).

[2] Item 16 of Schedule 3 of the Transitional Act provides that:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.”

[3] Accordingly, the Commission must be satisfied that the requirements in s.225 and s.226 of the Act are met prior to approving the termination of the Agreement.

[4] Section 225 of the Act provides 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.

[5] The Agreement was approved on 16 October 2009 and came into operation on the seventh day after approval, as stated in the approval notice. The nominal expiry date, as per clause 1.4 of the Agreement, is five years after the Agreement commences to operate as per the date stated in the approval notice. Therefore, the nominal expiry date is 23 October 2014. The Agreement has passed its nominal expiry date. The Applicant is the employer covered by the Agreement.

[6] Section 226 of the Act provides as follows:

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.

[7] In response to the application to terminate the Agreement, Directions were issued for the filing of material in reference to s.226 of the Act (set out above).

[8] The Applicant filed materials in accordance with these Directions.

Consideration

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[9] The Applicant submitted that as the Employer covered by the Agreement it was their view that the Agreement should be terminated.

[10] The Applicant submitted a Memo that was displayed, on notice boards at each of the venues the Applicant operates. Photographs were provided of the documents on various notice boards. The Memo states that the Applicant has made an application to terminate the Agreement as a consequence of the Agreement reaching its nominal expiry date on 24 October 2014, and that if approved, the employees will be covered by the Hospitality Industry (General) Award 2010 (the Award). The Memo stated that there would be slight changes to pay rates, due to a 1% loading under the Agreement being removed, however that this would be “evened out” with the extra penalty rates under the Award. The Memo stated that a copy of the new pay rate schedule would be forwarded upon request.

[11] The Applicant provided a letter from the Payroll/Accounts Officer stating that she had visited all of the Applicant’s sites and spoken with staff. She stated that all staff had been issued with the current pay rate schedule under the Agreement, and the Award pay rate schedule.

[12] The Commission also directed the Applicant to draw the Directions and the application to the attention of those employees covered by the Agreement. These Directions and the application were displayed with the Memo.

[13] The Applicant provided, as evidence of the views of the employees, an email from a Manager asking for a copy of the new pay rate schedule. A copy of an email in reply, attaching the rates under the Award, was provided, however, there was nothing further provided that evidenced the views of the employees.

[14] There are no employee organisations covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[15] The Applicant submitted that the termination of the Agreement would mean that the Award would apply to the employees. This would lead, in the Applicant’s submission, to minimal change in conditions of employment as the 1% casual loading under the Agreement would be evened out by penalty rates and allowances under the Award.

[16] The Applicant provided tables of the gross weekly wage under the Agreement and the Award. The Applicant also provided payslips under the Agreement, and modelled another set of payslips with rates that those employees would receive under the Award, having worked the same span of hours. The Agreement provides for an additional 1% loading for casuals, which will not apply in the event the Agreement is terminated. However, the Applicant submitted the Award provides for higher rates for casuals, for work undertaken from 7:00pm to 12:00am, and from 12:00am to 7:00am.

[17] The Agreement payslips and the modelled Award payslips showed that employees would either be marginally worse off or better off under the Award rates depending on the hours worked during the span of hours involving increased rates outlined above. However, the Applicant submitted that the employees would also receive tool and uniform allowances under the Award (these amounts were not included in the modelled payslips), which would lead to employees not being disadvantaged by the termination of the Agreement. The Applicant provided, upon request, further information of when these allowances would apply to employees.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[18] The Applicant submitted that there was nothing within their knowledge that would be contrary to the public interest in the termination of the Agreement.

Conclusion

[19] The Commission is satisfied that an application for the termination of an enterprise agreement has been made for an Agreement that has passed its nominal expiry date. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[20] On the material provided, in relation to the circumstances and the views of the relevant parties, it is not contrary to the public interest to order the termination of the Agreement. The employees will revert to the Award and the responses to the Directions demonstrate that employees were informed of this and of the comparison between the Agreement and the Award rates.

[21] The application was listed for hearing in Chambers. The Applicant was notified of the hearing and Directed to place copies of the Notice of Listing on the noticeboards. The Notice of Listing invited employees to participate in the hearing. The Applicant provided photographs of the listing displayed at the Applicant’s venues. No employees contacted Chambers in relation to attending the hearing.

[22] The Commission is satisfied that it is appropriate to terminate the Agreement in all the circumstances having considered the views and circumstances of the Applicant and the employees.

[23] Taking into account all of the material and the legislative tests in s.225 and s.226 of the Act, the Agreement accordingly is to be terminated.

[24] The termination will operate from the date of this decision.

[25] I Order accordingly.

COMMISSIONER

 1 AC328435.

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