D & J West Pty Ltd T/A Bakers Delight Wodonga

[2015] FWCA 5944

[2015] FWCA 5944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

D & J West Pty Ltd T/A Bakers Delight Wodonga
(AG2015/3666)

D. & J. WEST PTY LTD CERTIFIED AGREEMENT 2005

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	ADELAIDE, 28 AUGUST 2015

Application for termination of the D. & J. West Pty Ltd Certified Agreement 2005.

[1] On 23 June 2015, D & J West Pty Ltd T/A Bakers Delight Wodonga (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the D. & J. West Pty Ltd Certified Agreement 2005 1 (the Agreement).

[2] The Agreement has a nominal expiry date of 14 June 2008.

[3] The relevant provisions of the Act are 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.”

[4] With regard to the requirements of s.225, the Agreement has passed its nominal expiry date and I am therefore satisfied that the employer covered by the Agreement is entitled to make application to the Fair Work Commission to terminate the agreement.

[5] A Statutory Declaration had been filed by Ms Josephine West, the Owner/Operator of the Applicant, in which she advised that the Applicant did have employees covered by the Agreement.

[6] On 7 August 2015 Directions were issued instructing the Applicant to make available to its employees the Application and Statutory Declaration as well as the Directions and the Notice of Listing. The Directions stated that any employee who wanted to make a contribution could do so by either providing a written statement or advising my chambers of their telephone number to enable them to be called for the hearing. Nothing was heard from any of the Applicant’s employees.

[7] This matter was the subject of a telephone hearing on 27 August 2015 at which time I heard from Ms West on behalf of the Applicant.

[8] Ms West informed the Commission that she had complied with the Directions and provided the Applicant’s employees with all the documents. Ms West stated that the wages paid to the employees were higher than those in the Agreement as she included the CPI increase each year. Further, if the application was granted, employees will be employed under the relevant modern award, i.e. the General Retail Industry Award 2010.

[9] The Agreement also covered employees covered by the Bread Trade (Victoria) Award 1999 2. Ms West stated that those employees would also be covered by the General Retail Industry Award 2010.

[10] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[11] The termination of the Agreement shall operate from the date of this decision.

[12] Having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that it is not contrary to the public interest to terminate the agreement and that it is appropriate to do so having regard to all the circumstances.

 1   AG840527

 2   AW769688

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<Price code A, AG840527  PR571298>