Caseys Trading Victoria Pty Ltd

[2021] FWCA 985

[2021] FWCA 985

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Caseys Trading Victoria Pty Ltd
(AG2021/41)

CASEYS TRADING VICTORIA PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Fast food industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 23 FEBRUARY 2021

Application for termination of the Casey’s Trading Victoria Pty Ltd Employee Collective Agreement 2007.

[1] This decision concerns an application made on 13 January 2021 by Casey’s Trading Victoria Pty Ltd under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) to terminate the Casey’s Trading Victoria Pty Ltd Employee Collective Agreement 2007 (Agreement). The Agreement covers the company and its employees who would otherwise be employed under the National Training Wage Award 2000 and/or the National Fast Food Retail Award 2000, or their successor(s). The Agreement has passed its nominal expiry date. There is no union covered by the Agreement.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] 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.”

[4] 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.”

[5] Mr Ricky Casey, the company’s sole director and shareholder, provided a statutory declaration in support of the application on 12 February 2021, and a further statutory declaration on 19 February 2021. The statutory declarations state that the assets of the business were sold on 10 August 2020 at which time the employment of all employees of the company was terminated, therefore there are no employees employed under the Agreement. The statutory declarations further state that company has ceased operations and the Agreement has passed its nominal expiry date.

[6] Based on the material contained in the statutory declarations, 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 subsections 226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from the date of this decision.

DEPUTY PRESIDENT

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