Bakers Delight Holdings

[2019] FWCA 6867

[2019] FWCA 6867

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

Bakers Delight Holdings

(AG2019/3380)

Bakers Delight Holdings Ltd Collective Agreement (New South Wales) 2006

Retail industry
Deputy President Colman	MELBOURNE, 4 OCTOBER 2019

Application for termination of the Bakers Delight Ltd Collective Agreement (New South Wales) 2006.

1. On 9 September 2019, Bakers Delight Holdings Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act), to terminate the Bakers Delight Holdings Ltd Collective Agreement (New South Wales) 2006 (Agreement). The Agreement covers the Applicant and employees of the Applicant referred to in clause 2.2 of the Agreement. There is no union covered by the Agreement.

1. The Agreement is an instrument that was made under the Workplace Relations Act 1996 and passed its nominal expiry date in 2009. It is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s 225 of the FW Act.

1. 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.”

1. 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.”

1. Ms Bridie Nugent, the Applicant’s human resources administrator, provided a statutory declaration in support of the application, in which she set out a table comparing the terms of the Agreement to those of General Retail Industry Award 2010 (Award), which would otherwise apply to the employment of relevant employees. This table showed fifteen conditions of employment, principally penalty rates and loadings, which are more favourable to employees under the Award than under the Agreement. Ms Nugent also stated in her declaration that the company notified all nine employees currently covered by the Agreement that the application to terminate the Agreement had been made. She said that the company intended to have employees’ employment covered by the Award.

1. On 16 September 2019, I directed the Applicant to provide employees covered by the Agreement with a copy of the application and directions that employees could send to my chambers any views they may have as to the application to terminate the Agreement by Friday, 27 September 2019. The company confirmed that it complied with my directions and provided the relevant correspondence to the Commission.

1. My chambers did not receive any views from employees in relation to the application.

1. Returning to section 225, I note that at the time of the application, the Applicant was an employer covered by the Agreement and therefore had the necessary standing under
   s 225(a) to bring the application.

1. Based on the material contained in the Applicant’s statutory 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 therefore terminate the Agreement.

1. The termination will operate from 11 October 2019.

DEPUTY PRESIDENT

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