Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Application by Henry Thom
(AG2022/684)

STAFF SERVICES PTY LTD CERTIFIED AGREEMENT 2000

Application for termination of the Staff Services Pty Ltd Certified Agreement 2000

Introduction

[1] On 10 March 2022, Mr Henry Thom made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Staff Services Pty Ltd Certified Agreement 2000 (the Agreement).

[2] The Agreement covers Staff Services Pty Ltd (the Employer) and all employees of the Employer for whom classifications and classes of work are contained in the Agreement.

[3] The Agreement at clause 1.6 provides that it operates for a period of three years commencing on 9 December 1999 and expiring on 8 December 2002.

[4] On 17 February 2010, Senior Deputy President Richards made orders extending the nominal expiry date of the Agreement to 31 December 2012. 1 The Agreement has passed its nominal expiry date.

[5] The Agreement was made prior to the Act coming into force and is a “collective agreement-based transitional instrument” (CABTI). The application is made pursuant to s.225(b) of the Act and under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application of these sections is discussed below. For applications brought under schedule 3, item 16 of the Transitional Act, the application is dealt with pursuant to s.225 of the Act, with the same considerations required as if it were an agreement made under the Act.

[6] The application was made by Mr Thom using a Form F24B, supported by a Form F24C declaration of Mr Thom. On 7 April 2022, Mr Thom filed a Form F28 on account of the Agreement being a CABTI. I used my discretion within s.586 of the Act to treat the application made on 10 March 2022 as though it was made using the Form F28.

Related applications

[7] There are presently similar applications before the Fair Work Commission (Commission), to terminate the Agreement. The Employer suggested that the matter before me should be deferred while the other matters, involving jurisdictional objections made by the Employer be determined. I declined the Employer’s suggestion.

[8] I directed the Employer to advise the current pay rates paid to employees covered by the Agreement. The Employer advised that the following rates of pay are paid for all hours worked, including weekends and public holidays (junior rates have been edited for the purposes of this table):

Work Level	Full-time/part-time	Casual
Introductory	$20.33	$25.41
Level 1	$20.92	$26.16
Level 2	$21.72	$27.15
Level 3	$22.46	$28.08
Level 4	$23.67	$29.59

[9] The rates in the table above paid by the Employer match the award rates of pay, pursuant to s.206 of the Act which stipulates that a base rate of pay under an enterprise agreement must not be less than the modern award rate.

Conference

[10] At a telephone conference before me on 7 April 2022, Mr Thom was represented by Mr Giri Sivaraman of Maurice Blackburn Lawyers, instructed by the United Workers’ Union (UWU). The Employer was represented by Mr Anthony Harding of Counsel, instructed by Mr Jack Harding of Gifford Legal.

[11] The Employer advised that there were no jurisdictional objections to the Commission determining the application, but it did oppose the application. I advised that I would afford to the employees covered by the Agreement an opportunity to provide their views to the Commission. I required the Employer to facilitate this communication with its employees.

Further communication

[12] On 8 April 2022, following the conference, the Employer advised its position that:

“If the Commission determines that the Staff Services Pty Ltd Certified Agreement 2000 is to be terminated, the Respondent seeks that the termination not come into operation for a period of 4 weeks following any such decision. Such a timeframe will allow the Respondent sufficient time to adjust its payroll and rostering systems accordingly and communicate any changed employment terms and conditions with its employees.”

[13] On 20 April 2022, in compliance with directions issued by my Chambers, the Employer confirmed that it had communicated with employees covered by the Agreement, inviting their views to the Commission. The Employer advised that, as of 14 April 2022, there were 143 employees covered by the Agreement.

Views of employees covered by the Agreement

[14] I received views from two employees covered by the Agreement. The views, de-identified to protect the employees’ identities, are as follows:

“First Employee – views received in two emails on 16 April 2022

Email 1:

[…] i was employee for SSE. I started working for them from [date], and i started working as a full- timer from [date] till [date]. So, what happened is company was in legal problem with ABF and they banned company from doing sponsership around 2020 july because they were not paying right. 

However, i had done all according to company from applying from sponsership to applying PR. I applied my PR [in date] waited for around 2 years and from immigration we got 28 day's notice. This was due to the work aggreement company had which was expired long time back. So, all i want is justice. I hope to see SSE in trouble as due to them lot of people are in trouble. They made me work extra hours i have worked extra 12 hours every week for more than 5 years. Thank you

Email 2:

I forgot to mention in my earlier email thay i have worked for SSE for more than [number] years casual and full time including and when i asked them about longservice leave because they were shuting down SSE but they refused to give me long service leave...

Second Employee – views received 20 April 2022

Good Morning

I really appreciate that you investigate this whole process for zombie agreement.

Staff Services Pty Ltd Certified Agreement 2000

[…]

I am current employee of Mantle Group and same connected with this old agreement. My employement starts in [date]. My current pay rate is Level 3 F&B Attendant $28.08, and weekends is 28.08+$2.

As per this aggreement we dont get any penalties rate i.e Weekend Rates, Public holidays nir over times. My agreemnet is under Sraff Services Pty Ltd.

As we all know we live in a country which is known for its Culture and Government support, sometimes this really make us feel bad when we really work hard in one of the Brisbane's bussiest venue and in return we dont get any penalty rates which is governed by Fair Works.

When this news came in news article that one of the employee complaint to Fair Work about this agreement, out company Mantle Group they offered us another agrement to sign but with differnent name and entity i.e Hot Wok Food Makers Pty Ltd. They give us increase in payrate, i personally declined to sign as i dont support this. Some of the staff happily signed because of pay rise some dont.

We really want your help to terminate this agreement regardless of any other new entity by Mantle Group or Jimmy's on the Mall. Everyone should get right pay as per designed by Fair Works.

I request you to look after this matter more serious and terminate this agreement so that every single employee should feel good that Fair Works support us in any difficult situation.

We believe in Fair Works Commission of Australia.

If you need more information, I'm more than happy to step up.

[…]

Looking forward for your attention.

Thanks”

[15] The Second Employee indicated in their communication to the Commission that they had been offered an agreement to work with Hot Wok Food Makers Pty Ltd, which the Second Employee declined. The Second Employee provided a copy of a Casual Employment Agreement offered to them to work for Hot Wok Food Makers Pty Ltd. An annexure to the Casual Employment Agreement is discussed at the end of this decision at [45].

[16] On 21 April 2022, my Chambers received the following correspondence:

“I am a mantle group employee. Another employee gave me a copy of the email from [Associate to Commissioner Hunt].  

None of the floor staff received the email.

Should every staff member have received a copy of the email?”

[17] On 21 April 2022, I directed the Employer to provide to Chambers only a list of the 143 employees it stated were covered by the Agreement. On 28 April 2022, a list of 95 employees was provided to the Commission by the Employer. The following correspondence was sent to the Employer:

“Reference is made to the above matter and the attached and below correspondence.

The attached list only contains approximately 95 names. The Commissioner notes that on 20 April 2022, the Employer indicated that there were some 143 employees covered by the Agreement.

The Commissioner directs that the Employer provide a complete list of the details of the 143 employees.

The Commissioner advises that, for each of the venues, it does not appear to the Commissioner to be a long enough list to cover the number of employees she would expect to be employed at those venues in the roles covered by the Enterprise Agreement. If there are some staff not employed by Staff Services Pty Ltd at these venues, please describe how they are otherwise employed.”

[18] On 3 May 2022, the Employer’s representative provided the following correspondence to my Chambers:

“We have sought further instructions from our client in relation to the Commissioner’s query of 29 April 2022.

In response to the Commissioner’s direction, our client has instructed us to attach a list of the 143 employees which informed the provision of information to the Commission on 14 April 2022.

In response to the Commissioner’s queries, we are now instructed by our client as per the below.

Staff Services Employment Pty Ltd (‘SSE’) is an entity forming part of Mantle Group Hospitality (‘MGH’). MGH owns and operates a number of venues across Queensland and New South Wales (‘MGH venues’). 

SSE employs workers who work at MGH venues. There are other workers who work at MGH venues who are not employed by SSE, but by other entities which form part of MGH.

As the Commissioner has noted, the number of employees who are covered by the Staff Services Pty Ltd Certified Agreement 2000 (‘the certified agreement’) has reduced since the provision of information on 14 April 2022.

The reduction in the list of employees provided on 27 April 2022 compared with the information provided to the Commission on 14 April 2022 is due to the following:              

(a) the number of employees outlined on 14 April 2022 erroneously included 10 employees of SSE who are not covered by the certified agreement. These 10 employees are corporate, finance and marketing employees of SSE who are not covered by the certified agreement; 
(b) the employment of some employees had been transferred to Hot Wok Food Makers Pty Ltd, another entity forming part of MGH, such that they and are no longer covered by the certified agreement; and
(c) some employees have ended their employment with SSE and have not become employed by any other entity forming part of MGH.

Our client has also noted that the list of employees covered by the certified agreement continues to reduce given further employees have had their employment transferred to Hot Wok Food Makers Pty Ltd.”

Consent to terminate the Agreement

[19] On 4 May 2022, the Employer provided the following correspondence:

“The Respondent has given further consideration to the application before the Commission and has instructed us to write to the Commission to advise that it no longer opposes the application to terminate the Staff Services Certified Agreement 2000 ('the certified agreement').

Please take this email as formal notice of the Respondent's position. 

The Respondent still seeks that the termination of the certified agreement not come into operation for a period of 4 weeks following any decision to terminate the certified agreement to allow it sufficient time to adjust its payroll and rostering systems accordingly and communicate any changed employment terms and conditions with its employees. The Respondent intends to provide submissions supporting the Commission making an order to that effect and will do so by 6 May 2022 in accordance with the Directions of the Commission made on 8 April 2022.”

[20] Later, on 4 May 2022, Mr Thom’s representative wrote to my Chambers to advise the following:

“We note the email below from the Respondent’s representatives. Should the Commission be minded to terminate the Staff Services Certified Agreement 2000 ('the certified agreement'), our client does not oppose the Respondent having four weeks from the date of that decision, for that termination to take effect.

Further, in light of the Respondent’s position not to oppose the application to terminate the certified agreement, we respectfully request that the Commission confirm whether it still requires material to be filed by the parties this Friday (6 May) and a hearing to proceed on 13 May 2022.”

[21] On 5 May 2022, I caused my Chambers to issue the following correspondence to the parties:

“The Commissioner notes the recent correspondence of the parties this week.

Noting that the Respondent has advised that it no longer opposes the application, the Commissioner vacates the Directions issued on 8 April 2022. For completeness, the Commissioner provides the attached de-identified employee views.

The Commission will shortly release a decision.  It is the Commissioner’s preliminary view that she will terminate the Agreement with the termination taking effect four weeks from the date of the decision.”

Termination of an enterprise agreement after its nominal expiry date

[22] As earlier noted, item 16 of Schedule 3 to the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Act 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.

[23] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Not contrary to the public interest (s.226(a))

[24] I will first consider whether I am satisfied that termination of the Agreement is “not contrary to the public interest”.

[25] In his decision to approve the termination of the McDonald’s Australia Enterprise Agreement 2013, Deputy President Colman observed that: 2

“Section 226(a) does not require the Commission to be satisfied that the termination of an enterprise agreement is in the public interest. It sets a lower requirement. The Commission must be satisfied that it is not contrary to the public interest to terminate the agreement.” (emphasis is in the original)

[26] The Agreement was made approximately 23 years ago and has significantly less beneficial terms and conditions to employees than those contained within the two modern awards that would otherwise apply to employees covered by the Agreement. I am satisfied it is not contrary to the public interest to terminate the Agreement.

Appropriate (s.226(b))

[27] I must consider whether it is “appropriate” to terminate the Agreement, taking into account all the circumstances, including the views of the employees, each employer and each employee organisation covered by the Agreement, and the circumstances of those employees, employers and organisations, including the likely effect that the termination will have on each of them.

[28] While I note the Employer now does not oppose termination of the Agreement, the jurisdiction requires the Commission to be satisfied it is appropriate to terminate the Agreement taking into consideration the views of the Employer and the employees covered by the Agreement, together with the circumstances and the likely effect the termination will have on each of them.

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

[30] Two employees covered by the Agreement provided views; they wish for the Agreement to be terminated as it deprives them of penalty rates.

[31] The likely effect on the Employer is that it will need to comply with the Award and commence paying penalty rates to employees. The example provided below demonstrates the effect of the deprivation of penalty rates when compared to the Hospitality Industry (General Award) 2020:

[32] For more than two decades, the Employer has had the benefit to it, and to it only in depriving employees of payment of penalty rates for work performed at night, on weekends and on public holidays. My observation of the Agreement is that it provided no benefit to the employees at all.

[33] The effect of employees working without the payment of penalty rates is staggering. Sunday rates for a casual Level 1 employee covered by the Agreement amount to a loss to the employee of more than $11 per hour, when compared with the Award. On public holidays, the loss to a casual Level 1 employee is in excess of $26 per hour.

[34] It is difficult to understand how an employer could have, for so many years, knowingly deprived a large number of employees of penalty rates, to which they would have otherwise been entitled under the relevant award, simply because it lawfully could do so. The Second Employee has stated that they receive $28.08 per hour and an additional $2 per hour on weekends, however, the Employer advised that no penalty rates are paid. In any event, even if a $2 per hour premium is paid for Sunday work, the employee would be entitled to $38.01 for Sunday work under the award. Paying employees a $2 per hour premium is not demonstrating any benevolence; in my view it is unconscionable this arrangement has continued in place without an application by the Employer to terminate the Agreement.

[35] Taking into account the views of the persons (including the Employer) referred to in s.226(b) that have been presented to the Commission, and the circumstances of those persons, as well as the effect that termination will have on each of them, I consider that it is appropriate to terminate the Agreement.

The operative date of the termination

[36] The remaining issue for determination in this application is: when should the Agreement be terminated?

[37] Section 227 provides that, if an enterprise agreement is terminated under s.226, the termination ‘operates from the day specified in the decision to terminate the agreement.’

[38] I accept it is a significant change for the Employer to accommodate in its business; to pay penalty rates pursuant to the Awards. The Employer has nominated the day four weeks from the date of the Commission’s decision for the termination to take effect.

[39] The employees who provided views did not provide any views as to the operative date of termination of the Agreement.

[40] Mr Thom advised the Commission that he did not oppose the Employer being allowed four weeks from the date of decision for the termination to take effect.

[41] Having regard to the views of the Employer and Mr Thom, I am satisfied that it is suitable for termination of the Agreement to take effect four weeks from the date of this decision. I consider it suitable for termination of the Agreement to take effect on 9 June 2022.

Obiter commentary

[42] What I have to say in this part of the decision is clearly obiter, however I consider it necessary to say. The effect of this Employer having the benefit of an agreement made in 1999, without the payment to employees of penalty rates, at least in the last decade, is a disgrace. It has resulted in this Employer having an enormous competitive advantage over other employers who pay to employees penalty rates in accordance with the relevant awards or their own agreements which satisfy the better off overall test.

[43] I consider it necessary for a light to be shone on these kinds of archaic arrangements. Presently, it is incumbent upon employees, often casual employees, to make an application to the Commission, to request termination of an agreement where an employer does not have the intestinal fortitude to recognise what a significant benefit it has had for a substantial period of time and make its own application. The result of an employer making its own application is that it would signal to its employees that it recognises the inferior entitlements owed to its employees, and that it wishes to meet and rise to community standards contained within awards. At the very least, it would demonstrate that it accepts that it should pay to employees the same rates that a new business would be required to pay to its employees.

[44] Furthermore, it is my experience that often employers make jurisdictional objections on the basis that the casual employee who has made the application was not working at the precise time the application was made, and therefore cannot competently bring the application. Quite rightly, in this matter, no objection was made; it is true that the application was made on Mr Thom’s behalf while he was at work performing a casual shift.

[45] In obiter I also wish to state my concern relevant to information the Second Employee provided to the Commission. The Second Employee declined a request by the Employer to work for Hot Wok Food Makers Pty Ltd. The employment agreement provided to the Second Employee for their consideration includes the following as an annexure:

“Application to Undertake/Request

I, [name], being an employee of Hot Wok Food Makers Pty Ltd (my Employer) hereby make the following request:

1. I am employed under the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 which includes an undertaking (the Agreement).

2. My Employer has advised me that work in excess of the ordinary hours of work outlined in clause 4.1 of the Agreement (Additional Work) is available to me.

3. I hereby request to undertake voluntary additional hours in addition to my ordinary hours of work as set out in clause 4.1 of the Agreement. I understand that all time voluntarily worked by me in excess of my ordinary hours of work as per the Agreement shall be deemed voluntary additional hours.

4. Further, I hereby apply and request that the times at which and the days on which my ordinary hours of work can be undertaken will include between 7:00pm and 7:00am Monday to Friday and anytime on Saturdays and Sundays.

5. Further, I hereby apply and request that the days on which my ordinary hours of work can be undertaking will include all public holidays.

6. I understand that should my Employer consent/agree to this application, then

● any time worked by me in excess of my ordinary hours of work; and

● any hours worked by me between 7:00pm and 7:00am Monday to Friday and at any time on Saturdays and Sundays; and

● any hours worked by me on public holidays;

shall be paid at my ordinary hourly rate in accordance with clause 3.2.1 of the Agreement.

7. I have not been required or directed by the Employer to agree or to undertake voluntary additional hours or to agree to the other matters herein. I make these requests voluntarily.

Dated this _________ day of _________ 2022

Name: ______________

Signature: ______________”

[46] On 9 May 2022, I invited the parties’ views as to the above document, noting that I was troubled by the document and intended to have something to say in obiter in this decision. Responses were received by the parties on 11 May 2022.

[47] The rate of pay offered to the Second Employee by Hot Wok Food Makers Pty Ltd is $28.77 per hour as a Level 3 employee. The current award rate for the same classification is $28.08. The premium of 69 cents per hour would be unlikely to make up for a single hour of Saturday work paid at only $28.77 per hour against the award rate of $33.69, or a Sunday rate of $39.31. The small premium is unlikely to even cover the rate of $30.45 for worked performed Monday to Friday, 7pm to midnight.

[48] It appears to me that Hot Wok Food Makers Pty Ltd has, in having the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 (the Hot Wok Agreement) made and approved, attempted to distinguish between when Hot Wok would direct and require 3 the employee to work unsociable hours, as opposed to the employee completing a voluntary declaration form requesting to work unsociable hours without the payment of penalty rates.

[49] Clause 4.5(c) of the Hot Wok Agreement states the following:

“Notwithstanding the above at a) and b), where an Employee voluntarily makes an application in writing to the Employer and the Employer consents/agrees in writing, the times at which and the days on which ordinary hours are worked may include between 7pm and 7am Monday to Friday, anytime on Saturdays and/or anytime on Sundays. If an Employee voluntarily makes the written application to work ordinary hours between 7pm and 7am Monday to Friday and/or at any time on Saturdays and/or at any time on Sundays and the Employer consents/agrees in writing, then the Employee will be paid for such hours worked at the Employee’s ordinary hourly rates set out in clause 3.2.1. No additional or extra payments including for penalty rates as above under this Agreement will be made for such hours worked. The written application shall remain in force until varied or ceased in writing by the Employee.”

[50] A similar clause exists at clause 5.8.6 relevant to employees voluntarily working public holidays without the payment of penalty rates. It is inconceivable to imagine an employee voluntarily agreeing to work for the payment of $28.77 per hour on a public holiday when they would otherwise be entitled to $56.15 per hour.

[51] The Employer’s evidence in the matter before me is that employees have been offered by the Employer to move from Staff Services Pty Ltd, to now work for Hot Wok Food Makers Pty Ltd. Employees of Staff Services Pty Ltd will soon become entitled to the benefits of the relevant awards, including penalty rates. They will become a much more expensive resource than they have been.

[52] Employees of Hot Wok Food Makers Pty Ltd are covered by the Hot Wok Agreement and invited to sign away their entitlement to penalty rates where there exists very little difference between the award base rate and the agreement rate. Only if they are requested and directed by Hot Wok to work unsociable hours, and they haven’t signed a voluntary hours form will they become entitled to penalty rates. There cannot be any benefit at all to employees to deprive themselves of penalty rates when they would be entitled to the $28.77 rate anyway for a Level 3 employee, whether they signed the voluntary form or not.

[53] It begs the question; will future shifts by the Mantle Group be offered to employees of Staff Services Pty Ltd who are entitled to penalty rates, or to employees of Hot Wok Food Makers Pty Ltd where they have not signed the voluntary hours form? These two groups of employees are a far more expensive proposition for the Mantle Group than those employees of Hot Wok Food Makers Pty Ltd who have signed the voluntary hours form for seemingly no benefit to themselves.

[54] Interested parties might seek to enlighten employees of Hot Wok Food Makers Pty Ltd to there being no benefit that I can foreshadow in signing the voluntary hours form. The distinction between an employer covered by an enterprise agreement directing and requiring an employee to work unsociable hours and being entitled to penalty rates, as opposed to an employee voluntarily requesting to work unsociable hours and not being compensated with penalty rates, when the premium between the agreement rate and the award rate is insignificant, has not been made clear to me, and would certainly cause a significant BOOT consideration if a similar matter ever came before me.

[55] Interestingly, in the Form F17 of the Chief HR Officer of Hot Wok Food Makers Pty Ltd to approve the Hot Wok Agreement, the following was put:

“1. The employer believes that the agreement in practice passes the better of overall test (‘BOOT’).

2. If the Commission takes the view that on the whole, the agreement does not pass the BOOT, the employer would seek to rely on the ‘exceptional circumstances’ considerations contained at s 189 of the Fair Work Act 2009 (Cth) (‘FW Act’) for the approval of the agreement.

3. The exceptional circumstances are a combination of events and factors that have taken place over a short period of time and that have significantly and adversely affected the restaurant and hospitality industry. These have included COVID-19 pandemic and the detrimental effects it has had on the restaurant and hospitality industry. Combined with the significant reduction in customers, the business has struggled, and will continue to struggle to find workers to adequately service its needs in the near future.

4. The business will likely suffer financially as a result of the ongoing effects of the COVID-19 pandemic.

5. This agreement is part of a reasonable strategy to deal with this short-term crisis and to assist the employer through this difficult period.

6. The employer would submit that that the Commission should approve the agreement as the exceptional circumstances mean it would not be against the public interest to approve the agreement.

7. The employer would of course seek to make further submissions to the Commission at the appropriate juncture should it be required by the Commission”

[56] In my view, the statement in the Form F17 is incredulous and extraordinary. What is the reasonable strategy to deal with the short-term crisis? Permitting employees to sign away their entitlement to penalty rates because the employee asked for that? Saving Hot Wok Food Makers Pty Ltd from paying penalty rates required of other employers in the industry?

[57] I note that Hot Wok Food Makers Pty Ltd nominated that five employees were asked to vote, with four employees voting to make the agreement.

[58] The Hot Wok Agreement was approved without requiring Hot Wok Food Makers Pty Ltd to provide information as to how the voluntary hours clause within the agreement would pass the BOOT. In my respectful view, the presence in the Hot Wok Agreement of the voluntary hours provisions is such that the Agreement could never satisfy the BOOT.

[59] Hot Wok Food Makers Pty Ltd should, in my view consider very seriously its moral obligations to its employees. It has increased its number of employees in recent times, with employees of Staff Services Pty Ltd being offered work with Hot Wok Food Makers Pty Ltd. In my view, Hot Wok Food Makers Pty Ltd should never offer an employee a voluntary hours document, and where an employee has requested to work without the payment of penalty rates, it should refuse to allow the employee to do so in the future. There is simply no benefit to the employee in making such a request. On any fair observation, the sole benefit is to Hot Wok Food Makers Pty Ltd in not paying penalty rates that would otherwise apply.

Conclusion

[60] For the reasons given above, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[61] For the reasons given above, in consideration of the material before me relevant to ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[62] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[63] For the reasons given above, the termination will take effect from 9 June 2022.

COMMISSIONER

 1   PR993845.

 2   [2019] FWCA 8563 at [16].

 3   Clause 4.5 of the Hot Wok Food Makers Pty Ltd (ABN 15 058 494 447) Workplace Agreement 2021 [2021] FWC 4524.

Printed by authority of the Commonwealth Government Printer

<AG798483  PR741385>