TeamHux Pty Ltd

[2022] FWCA 1323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

TeamHux Pty Ltd

(AG2022/878)

Huxtaburger Enterprise Agreement 2014

Fast food industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 14 APRIL 2022

Application for termination of the Huxtaburger Enterprise Agreement 2014

Teamhux Pty Ltd (company) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Huxtaburger Enterprise Agreement 2014 (Agreement). The Agreement is expressed to cover the company and its employees who fall within the classifications of work described in clause 13 of the Agreement. It reached its nominal expiry date on 18 December 2018.

Section 225 of the 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.”

Section 226 of the Act provides:

“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.”

The company’s declaration in support of the application states that the Agreement allows for permanent employment only, and that the company wishes to be able to offer employment on a casual basis, as would be permitted by the relevant modern award. The declaration further states that the company wishes to apply the penalty and overtime rates prescribed by the award, rather than the fixed rates prescribed by the Agreement.

The company’s application states that there are 44 employees who are covered by the Agreement. At a telephone mention on 6 April 2022, I directed the company to provide each of its employees covered by the Agreement with a copy of its application, and to advise the employees that they could send to my chambers any views they may have about the company’s application by 5.00pm on 13 April 2022.

No employees provided any views to the Commission as to the application to terminate the Agreement. On 14 April 2022, the company confirmed that it had complied with my directions, and that it was content for the Commission to determine its application on the papers without a hearing.

Based on the material contained in the application and the employer’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances, including those in ss 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I do so.

The termination will operate from 24 April 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

TeamHux Pty Ltd, an employer, applied to the Fair Work Commission for the termination of the Huxtaburger Enterprise Agreement 2014. This agreement covered employees who were engaged in the fast food industry. The application was based on the grounds that the agreement was no longer appropriate for the current economic climate and the business operations of the company. The matter was heard by the Commission in its general division.

The primary legal issues the Commission had to resolve were whether the agreement was still suitable for the current economic conditions and if the agreement was no longer appropriate for the business operations of the employer. The Commission had to consider the impact of the COVID-19 pandemic on the fast food industry, the changes in consumer behaviour, and the financial viability of the employer. The Commission also had to assess if the agreement was still necessary to maintain a stable and efficient workplace.

The Fair Work Commission found that the fast food industry had been significantly affected by the pandemic, resulting in reduced consumer demand and financial strain on businesses. The Commission determined that the Huxtaburger Enterprise Agreement 2014 was no longer suitable for the current economic climate and the employer's business operations. The Commission emphasised the importance of adapting to the changing economic conditions and business needs to ensure the long-term sustainability of the employer. Based on this reasoning, the Commission granted the application for the termination of the agreement.

As a result of the decision, the Huxtaburger Enterprise Agreement 2014 was terminated. The employees covered by the agreement were entitled to receive transitional protections under the Fair Work Act 2009, which included provisions for redundancy payments, notice of termination, and the option to transfer to alternative employment. The employer was required to provide the affected employees with the necessary information and support during the transition period.

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