The Gresham Bar Pty Ltd
[2022] FWCA 3152
•21 SEPTEMBER 2022
| [2022] FWCA 3152 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
The Gresham Bar Pty Ltd
(AG2022/3643)
Gresham Bar Pty Ltd - Enterprise Agreement 2016
| Hospitality industry | |
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 SEPTEMBER 2022 |
Application for termination of the Gresham Bar Pty Ltd - Enterprise Agreement 2016 – Agreement terminated.
On 30 August 2022, the Gresham Bar Pty Ltd (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Gresham Bar Pty Ltd – Enterprise Agreement 2016 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 1 January 2020.
The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals. The Applicant has 15 employees covered by the Agreement.
There are no unions covered by the Agreement.
Consultation with employees
On 8 July 2022, the Applicant held a meeting with all employees to discuss the proposed termination of the Agreement. The meeting was conducted by Mrs Charmaine Manewell, People and Culture Manager for the Applicant, and Ms Kelly Fehlberg, Group Operations Manager for the Respondent.
During the meeting, employees were provided with the following verbal advice:
(a)the Agreement had nominally expired on 1 January 2020;
(b)the Applicant proposed to terminate the Agreement, and intended to ask the employees to vote on whether they agreed with this proposal;
(c)should employees vote to terminate the Agreement, their employment would instead by covered by the Hospitality Industry (General) Award 2020 (the Award);
(d)if the Agreement was terminated, the Applicant would agree to retain any employee’s ordinary hourly rate of pay, where that rate of pay would exceed their ordinary hourly rate under the Award; and
(e)employees would be asked to vote regarding the proposed termination via a ballot on Friday, 19 August 2022 from 9:00 am to 5:00 pm.
Employees were advised to direct any questions regarding the proposed termination of the Agreement to Mrs Manewell, who would be compiling all questions and providing answers in one document to be circulated amongst all employees.
Physical copies of the Award and the Agreement were provided to the employees in the meeting for their consideration.
On 8 August 2022, employees were hand-delivered a letter confirming the information verbally provided to them in the meeting and invited employees to attend a second staff meeting to be held the following week. A copy of the letter was also emailed to all employees, along with a copy of the Agreement and the Award.
On 15 August 2022, a second staff meeting was held to address questions raised by employees since the first meeting, and to discuss any additional queries from employees. This meeting was conducted by Mrs Manewell.
Following the second meeting, the Applicant compiled a Q&A document, which captured all questions raised by employees up to, and during, the second staff meeting on 15 August 2022. This document was emailed to all employees on 18 August 2022. Attached to this email was also the Award, the Agreement and the Hospitality Industry (General) Award Pay Guide (the Pay Guide), so that employees could more easily identify the rates of pay payable under the Award, for the hours they commonly worked.
On 19 August 2022 at 9.00 am, Mrs Manewell attended the workplace and set up and maintained a physical voting station where employees who attended:
(a)collected an authorised voting slip, which slips were made available at the voting station; and
(b)cast their vote by placing their completed voting slip into a physical ballot box.
On 19 August 2022 at 6:00 pm, the ballot closed. Of the Applicant’s 15 employees, 12 casted a valid vote, of which 11 voted to approve the termination of the Agreement.
Consideration
Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application. I am satisfied that this requirement has been met.
Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement if:
“(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
Based on the material contained in the declaration filed with the application, I am satisfied the requirements of s.223 have been met. The Commission is therefore obligated to terminate the Agreement.
Section 224 of the Act states that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement. In accordance with s.224, I have determined that the Agreement will be terminated from 11.59 pm on 30 September 2022 with 1 October 2022 being the first day that the applicable modern awards will apply.
Access to a copy of this Decision is to be provided to the relevant employees for their information.
DEPUTY PRESIDENT
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