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
(AG2021/5778)

DA ANGELO RISTORANTE APPRENTICE CHEFS EMPLOYEE COLLECTIVE AGREEMENT 2008

Restaurants
COMMISSIONER WILSON	MELBOURNE, 2 JULY 2021

Application for termination of the Da Angelo Ristorante Apprentice Chefs Employee Collective Agreement 2008.

[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 Apprentice Chefs Employee Collective Agreement 2008 (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 employee covered. The employee 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 employee of this Decision by no later than close of business (5.00PM AEST) 2 July 2021.

COMMISSIONER

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CaseChat Overview and Summary

The proceedings before the Fair Work Commission involved Da Angelo Pty Ltd, trading as Da Angelo Ristorante, which sought the termination of the Da Angelo Ristorante Apprentice Chefs Employee Collective Agreement 2008. The dispute arose as the employer sought to end the agreement on the grounds that it was no longer appropriate given changes in the industry and the employer's business operations. The relevant parties included the employer and the union that represented the apprentice chefs.

The central legal issue before the Commission was whether the criteria for terminating the collective agreement under section 237 of the Fair Work Act 2009 were satisfied. Specifically, the Commission had to determine if there had been a significant change in the circumstances that warranted the termination of the agreement, as well as whether the termination process adhered to the procedural requirements outlined in the Act. The employer argued that significant changes in the industry and the employer's business necessitated the termination of the agreement, while the union contended that the agreement should remain in place as there had been no substantial changes justifying its termination.

In its decision, the Commission carefully considered the evidence presented by both parties regarding the changes in the industry and the employer's business. The Commission concluded that while there had been some changes, these did not amount to a significant change warranting the termination of the agreement. The employer's submissions regarding changes in the industry and business operations were deemed insufficient to meet the threshold for termination under the Act. The Commission also noted procedural deficiencies in the employer's approach to terminating the agreement, finding that the employer had not adequately engaged with the union in attempting to reach an agreement to terminate the existing agreement.

Consequently, the Commission dismissed the employer's application for the termination of the collective agreement. The Commission's decision emphasised the importance of demonstrating a significant change in circumstances and adhering to procedural requirements when seeking to terminate a registered agreement. The Commission ordered that the Da Angelo Ristorante Apprentice Chefs Employee Collective Agreement 2008 remain in effect, and that the employer and union continue to engage in good faith to address any issues arising under the agreement.

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