Tasty Trucks Vic Pty Ltd (formerly Tasty Trucks Pty Ltd)

[2014] FWCA 8436

[2014] FWCA 8436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Tasty Trucks Vic Pty Ltd (formerly Tasty Trucks Pty Ltd)
(AG2014/9113)

TASTY TRUCKS PRODUCTION ENTERPRISE AGREEMENT 2010

Fast food industry
COMMISSIONER GREGORY	MELBOURNE, 25 NOVEMBER 2014

Application for termination of the Tasty Trucks Production Enterprise Agreement 2010.

[1] On 24 September 2014 Tasty Trucks Vic Pty Ltd (“Tasty Trucks”) made application under s.225 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Tasty Trucks Production Enterprise Agreement 2010 (“the Agreement”). The nominal expiry date of the Agreement is 2 September 2012.

[2] Mr Peter Abrams was given leave to appear on behalf of Tasty Trucks under s.596 of the Act on the basis that his involvement would enable Tasty Trucks to be represented more effectively.

[3] The application was dealt with in a hearing before the Fair Work Commission (“the Commission”) on 24 November 2014. At the conclusion of the hearing I issued a decision in transcript approving the termination of the Agreement. I now confirm the terms of that decision. It has been subject to appropriate editing without changing the intent of the decision.

[4] As indicated, the Agreement that is the subject of this application has passed its nominal expiry date. Section 225 of the Act provides that if an Agreement has passed its nominal expiry date an employer covered by the Agreement, an employee covered by the Agreement, or an employee organisation covered by the Agreement may apply to the Commission for the termination of the Agreement. In this case the application has been made by the Employer covered by the Agreement.

[5] Section 226 then continues to set out the circumstances in which the Commission must terminate an agreement after an application has been made under s.225. It provides as follows:

“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.”

[6] Tasty Trucks submits termination of the Agreement will mean the employees are covered by the Fast Food Industry Award 2010. It also submits the Award provides terms and conditions of employment that are more advantageous to the employees. This is the case, in particular, in regard to the wage rates and the overtime provisions. However, Tasty Trucks also notes that it is disadvantaged by the night shift penalty rates provided for in the Agreement. For example, the Agreement provides for a 15 percent loading for all ordinary hours worked between 9 p.m. and 6 a.m., Monday to Friday, whereas the Award provides for a ten percent loading from 9 p.m. until midnight, and a 15 percent loading thereafter.

[7] However, Tasty Trucks submits that on balance the terms and conditions contained in the Fast Food Industry Award 2010 provide entitlements that are more advantageous for the employees than those contained in the Agreement.

[8] Tasty Trucks also indicated that its Managing Director, Mr Colin Lear, and its representative, Mr Peter Abrams, met with the employees to discuss the proposed application to terminate the Agreement, and the reasons why this was being pursued. It also indicated that following these discussions the employees agreed to conduct a secret ballot to vote on the question, “Do you approve of the termination of the Tasty Trucks Production Workplace Agreement 2010.” It also submitted that the outcome of the secret ballot indicated overwhelming support for termination of the Agreement.

[9] Tasty Trucks also provided statutory declarations from Ms Alice MacKenzie, the night production Team Leader, and Ms Nada Lovric, a night production Team Member. Each confirmed that the employees had been briefed about the proposed termination of the Agreement. They also confirmed the employees support for that outcome, as demonstrated by the result of the secret ballot.

[10] I have had regard to the particular requirements contained in s.225. I am satisfied, firstly, that there is nothing in the circumstances involved in this matter that suggests it would be contrary to the public interest to terminate the Agreement.

[11] I am also satisfied that the Employer, who is the Applicant in this matter, supports the termination of the Agreement. I am also satisfied that the employees covered by the Agreement have been provided with relevant information about the application, and have had the opportunity to make their views known about it. The fact that no objection has been raised in response, together with the two statutory declarations, confirms that the employees do not object to the application.

[12] I am also satisfied that the materials and submissions provided in support of the application indicate that the employees are likely to be beneficially affected by the termination of the Agreement in that they will be covered by the terms and conditions contained in the Fast Food Industry Award 2010, which provides terms and conditions of employment that are at least as beneficial, if not more so, than the terms and conditions contained in the existing Agreement.

[13] Having come to these conclusions s.226 of the Act provides that I must terminate the Agreement. The Agreement is therefore terminated and in accordance with s.227 termination takes effect from the date the decision was handed down in transcript, being 25 November 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE880543  PR558195>