Bakers Delight Holdings Ltd T/A Bakers Delight

[2019] FWC 5871

[2019] FWC 5871

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 Ltd T/A Bakers Delight
(AG2019/2993)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 AUGUST 2019

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

[1] On 15 August 2019, Bakers Delight Holdings Ltd T/A Bakers Delight (Bakers Delight) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Bakers Delight Holdings Ltd Collective Agreement (New South Wales) 2006 (the Agreement). The Agreement is a collective agreement-based transitional instrument.

[2] A statutory declaration in support of the application was filed by Ms Bridie Nugent, HR Administrator for Bakers Delight. In the statutory declaration, Ms Nugent declared:

“Bakers Delight Holdings LTD intends to terminate the Bakers Delight Holdings LTD Collective Agreement (New South Wales) 2006 and transfer onto the General Retail Industry Award 2010 as employees will be better off overall.”

[3] As there were no other details provided in the statutory declaration, I determined I would hold a telephone mention. I intended to ascertain how many employees are covered by the Agreement, in what classifications they are employed and whether or not they are aware the application has been made. I also wanted to determine the current rates of pay of the employees covered by the Agreement because it was evident its nominal expiry date was reached approximately 10 years ago. Having done so, I intended to make directions for the further conduct of the application.

[4] On 21 August 2019, a Notice of Listing was sent to Ms Nugent at her nominated email address. It advised that a telephone Mention would be held at 9.15am on Friday 23 August 2019. There is nothing on the Commission’s file to suggest that this emailed Notice of Listing was not received by Ms Nugent and nor did Ms Nugent subsequently contact my Chambers and advise she was not available at 9.15am on Friday 23 August 2019.

[5] When my Associate attempted to contact Ms Nugent for the telephone Mention, she was advised that Ms Nugent was not available. The receptionist for Baker’s Delight was very diligent in requiring my Associate to explain the reason for the telephone call but not able to disclose why Ms Nugent was not available, beyond stating she was in a meeting. As such, the telephone Mention could not proceed and I was not able to obtain information that would have assisted in the further conduct of the application.

[6] It is not possible for me to make the findings I am required to make pursuant to s.226 of the Act due to the lack of information in the application and accompanying statutory declaration. The application filed on 15 August 2019 is therefore dismissed.

[7] Should Bakers Delight wish to make a new application to terminate the Agreement, it is welcome to do so. I would simply make the point that the initial consideration of any subsequent application will be assisted by the inclusion of the particulars I have referred to in [3] above, in the statutory declaration accompanying it. Being responsive to future contact from the Commission would also be worthwhile.

DEPUTY PRESIDENT

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