DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Da Angelo Pty Ltd T/A Da Angelo Ristorante
(AG2021/5779)

DA ANGELO RISTORANTE CASUAL EMPLOYEES COLLECTIVE AGREEMENT 2007

Restaurants
COMMISSIONER WILSON	MELBOURNE, 2 JULY 2021

Application for termination of the Da Angelo Ristorante Casual Employees Collective Agreement 2007.

[1] On 23 June 2021 Da Angelo Pty Ltd T/A Da Angelo Ristorante (the Applicant) 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 Da Angelo Ristorante Casual Employees Collective Agreement 2007 (the Agreement).

[2] In support of the application, Angelo Fraraccio, Director of the Applicant, lodged an initial statutory declaration with the Commission dated 21 June 2021. A subsequent statutory declaration was lodged with the Commission dated 28 June 2021. The declaration says that, should the Agreement be terminated, these employees would be covered by the Restaurant Industry Award 2020.

[3] Item 16, Schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 ("the FW 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.

[4] I issued Directions concerning the application on 25 June 2021 which provided an opportunity for any employee under the Agreement and any employee organisation with an interest in the Agreement, to oppose or otherwise express a view on the application. I also directed that the Directions be advised to employees and any employee organisations.

[5] On 1 July 2021, Ms Harris on behalf of the Applicant provided to the Commission a copy of the email containing the Directions, the initiating application and subsequent statutory declaration sent to the employees covered. The employees covered elected not to provide any views on the application.

[6] Section 226 of the FW 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.”

[7] I am satisfied that each of the requirements of s.226 of the FW Act as are relevant to this application for termination have been met.

[8] In accordance with section 227 of the FW Act, the termination will take effect from 2 July 2021.

[9] Da Angelo Pty Ltd T/A Da Angelo Ristorante are directed to take all reasonable steps to inform the affected employees of this Decision by no later than close of business (5.00PM AEST) 2 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves Da Angelo Pty Ltd, trading as Da Angelo Ristorante, and the Fair Work Commission. The dispute pertains to an application to terminate the Da Angelo Ristorante Casual Employees Collective Agreement 2007. The matter was heard in the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The central legal issues in this case revolve around the validity and appropriateness of terminating the collective agreement in question. Specifically, the court needed to assess whether the conditions for terminating the agreement were met, and whether such a termination would be in the best interests of the employees and the employer.

The Fair Work Commission examined the application by Da Angelo Pty Ltd to terminate the collective agreement. The court considered various factors, including the current relevance and applicability of the agreement, changes in the workplace environment, and the impact of the termination on the employees. The Commission also evaluated the employer's justification for seeking termination and the potential consequences for the employees if the agreement were to be terminated. After a thorough examination, the Commission determined that the application did not meet the necessary criteria for termination. The court found that the employer had not demonstrated sufficient grounds to justify the termination of the collective agreement.

Consequently, the Fair Work Commission dismissed the application for termination. The Commission concluded that the collective agreement remained valid and should continue to govern the employment conditions of the casual employees at Da Angelo Ristorante. The decision underscores the importance of ensuring that any application for termination is substantiated with appropriate evidence and justification. The Commission emphasised that the interests of the employees must be carefully considered when assessing such applications. The final orders of the Commission reflect its decision to uphold the collective agreement and deny the employer's application for its termination.

Da Angelo Pty Ltd T/A Da Angelo Ristorante

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established