Drinx Pty Limited

[2013] FWCA 9575

[2013] FWCA 9575

FAIR WORK COMMISSION

DECISION

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

Drinx Pty Limited
(AG2013/11603)

DRINX PTY LTD CERTIFIED AGREEMENT 2006

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 DECEMBER 2013

Application for termination of the Drinx Pty Ltd Certified Agreement 2006.

[1] This is an application, filed by Drinx Pty Limited (the ‘applicant’), pursuant to Item 16, Sch 3 of the Fair Work Transitional Provisions and Consequential Amendments Act 2009 (the ‘Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Drinx Pty Ltd Certified Agreement 2006 [AG848911] (the ‘Drinx Agreement’). Relevantly, the Drinx Agreement has passed its nominal expiry date of 27 April 2009.

[2] The application was filed together with an application pursuant to 319 of the Act for an order pursuant to 319(b) that the Employment Innovations Pty Ltd Enterprise Agreement 2010 will cover non-transferring Drinx Pty Ltd employees who perform, or are likely to perform transferring work at the Mean Fiddler Hotel (the ‘Hotel’) and an order pursuant to s 319(c) of the Act that the Drinx Agreement will not cover non-transferring Drinx Pty Ltd employees who perform, or are likely to perform transferring work at the Hotel.

[3] 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 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] The background to this application is outlined in my decision, Drinx Pty Limited [2013] FWC 9577 and the statutory declaration of Mr B Jenkins, the General Manager and Licensee of the Hotel, filed in that matter.

[5] At a hearing of the application on 4 December 2013, Mr S Morrissey of Australian Hotels Association (NSW) appeared with Mr Jenkins for the applicant. Mr Morrissey affirmed the content of Mr Jenkins’ statutory declaration. He submitted that the employees who would be newly covered by the EI Agreement would be better off under the EI Agreement as the wages are substantially higher than those under the expired Drinx Agreement. He noted that the Drinx Agreement had been made under a previous legislative regime and had not been subject to the Better Off Overall Test.

[6] Having considered the applicant’s submissions and upon reviewing the application and the statutory declaration of Mr Jenkins, I am satisfied that all of the requirements of the Act, in particular, ss 225 to 227 of the Act have been met. In particular, I am satisfied that it would not be contrary to the public interest to do so. Accordingly, the Drinx Pty Ltd Certified Agreement 2006 is terminated. Pursuant to s 224 of the Act, the termination is to take effect on and from 4 December 2013.

DEPUTY PRESIDENT

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<Price code A, AG848911  PR545381>