Cater Care Services Pty Ltd

[2014] FWCA 7887

[2014] FWCA 7887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Cater Care Services Pty Ltd
(AG2014/9556)

CATER CARE SERVICES NATIONAL COLLECTIVE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 NOVEMBER 2014

Application for termination of the Cater Care Services National Collective Agreement 2009.

[1] This is an application, filed by Cater Care Services Pty Ltd (the ‘applicant’) pursuant to s 225 of the Fair Work Act (the ‘Act’) which seeks to terminate the Cater Care Services National Collective Agreement 2009. Relevantly, the Agreement has passed its nominal expiry date of 3 June 2014.

[2] The relevant provisions of the Act governing this application are set out 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 employees 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 is:

(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.’

[3] In a statutory declaration supporting the termination of the Agreement (Form F24C), Ms P McDonnell, Human Resources Manager, explained that the Agreement does not currently cover any employees of the applicant as all of its employees are covered either by the Cater Care Services Agreement 2014 - 2017 Eastern Australia [AE410360] or the Cater Care Services Agreement 2014 - 2017 Western Region [AE410361]. In the event that the applicant employed employees who were not covered by this Agreement, they would be covered by the Hospitality Industry (General) Award 2010 [MA000009]. There were no bargaining negotiations ongoing at the time the application was made. She did not believe that the termination of the Agreement would be against the public interest.

[4] Having considered the applicant’s submissions and upon reviewing the application and the accompanying statutory declaration of Ms P McDonnell, I am satisfied that all of the requirements of the Act, in particular ss 225 to 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Cater Care Services National Collective Agreement 2009 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 11 November 2014.

DEPUTY PRESIDENT

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