Brian & Joan Preece (Partnership) T/A Donut King Stud Park

[2016] FWCA 9140

[2016] FWCA 9140

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

Brian & Joan Preece (Partnership) T/A Donut King Stud Park
(AG2016/4539)

DONUT KING STUD PARK EMPLOYEE COLLECTIVE AGREEMENT (2006)

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 20 DECEMBER 2016

Application for termination of the Donut King Stud Park Employee Collective Agreement (2006).

[1] On 20 July 2016, Mr Brian Preece and Ms Joan Preece (the Applicants) 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 Donut King Stud Park Employee Collective Agreement (2006) (the Agreement).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] Following a telephone conference with the Applicants on 8 August 2016, they provided a copy of correspondence Retail Food Group had sent them on 15 July 2016, requesting they file an application to terminate the Agreement. On 15 August 2016, I caused correspondence to be sent to Retail Food Group, asking that it provide contact details for the current employer so appropriate enquiries could be made.

[4] On 14 September 2016, Retail Food Group advised that Donut King Stud Park is operated as a corporate store and no employees are covered by the Agreement.

[5] On 28 September 2016, further correspondence was sent to Retail Food Group, seeking advice as to whether there were any transferring employees from “Brian and Joan Preece trading as Donut King Stud Park,” and if there were, what the terms of their employment were on commencement.

[6] After attempts to follow up the correspondence of 28 September 2016 with Retail Food Group were unsuccessful, Mr Preece was contacted on 14 November 2016. He advised that the employment of his staff was terminated when he sold the store, though he was unsure if any staff were re-employed.

[7] On 18 November 2016, Directions were issued which required Retail Food Group to provide a copy of the Directions and the application and statutory declaration made by the Applicants to all employees of Donut King Stud Park. The Directions noted that if any party opposes the application to terminate the Agreement, advice should be given to my chambers, in writing, by close of business Friday 16 December 2016. Advice that the Directions were complied with was received and no objection to the application was received by any party.

[8] The Act relevantly provides 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.”

[9] I am satisfied Mr Brian Preece and Ms Joan Preece are eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[10] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances. In particular, I have had regard to the advice received that no employees are covered by the Agreement and the absence of any objection to the application.

[11] In accordance with s.227 of the Act, the termination will take effect from 20 December 2016.

DEPUTY PRESIDENT

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