EOC 888 Pty Ltd

[2019] FWCA 7095

[2019] FWCA 7095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225—Enterprise agreement

EOC 888 Pty Ltd
(AG2019/1694)

THE EOC 888 PTY LTD ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 OCTOBER 2019

Application for termination of the EOC 888 Pty Ltd Enterprise Agreement 2009 – restaurant and hospitality industry – long expired agreement – consultation with employees – views of employees – business synergy and consistency – termination of agreement not contrary to public interest or otherwise inappropriate – termination of agreement approved.

[1] The following is an abbreviated decision in respect to this matter. More detailed reasons for the decision will be published in due course.

[2] On 22 May 2019, EOC 888 Pty Ltd, Urban Purveyor Group Pty and Rockpool Group Holdings Pty Ltd (jointly the ‘applicants’) made an application, pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’) for the termination of an enterprise agreement after its nominal expiry date. The Agreement is the EOC 888 Pty Ltd Enterprise Agreement 2009 (the ‘Agreement’). The nominal expiry date of the Agreement was 4 February 2014. The Agreement covers approximately 304 employees engaged in classifications otherwise found in the Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010 and who are employed at various restaurants and licensed venues in New South Wales, Queensland and Victoria.

[3] Section 226 of the Act provides that the Fair Work Commission (the ‘Commission’) must terminate an agreement, following an application under s 225 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.’

[4] The application was subject to a conference before me on 20 September 2019 and a hearing on 11 October 2019. Ms E Raper of Senior Counsel appeared with Ms B Binns, Partner of PricewaterhouseCoopers for the applicants. The applicants were granted permission to be legally represented, as the Commission was satisfied, pursuant to s 596 of the Act, that the proceedings would be conducted more efficiently by such representation.

[5] The application was accompanied by a Statutory Declaration from Ms J Ntatsopoulos dated 21 May 2019, which set out the grounds of the application, provided detailed annexures of the consultation process engaged in with employees, petitions from employees in support of the termination of the Agreement and other relevant documents. At the hearing on 11 October 2019, Ms Ntatsopoulos provided an additional Statement of Evidence dated 1 October 2019 updating the Commission with workforce statistics and other information. Led by Ms Raper, she also provided oral evidence in which questions from me were answered and further background to the application was set out. Ms Raper provided detailed written submissions which she elaborated on in oral submissions.

[6] At the conclusion of the hearing, I was satisfied on the basis of the detailed documentary evidence and Ms Ntatsopoulos’ evidence, that the termination of the Agreement would not be contrary to the public interest and further, that it was appropriate to do so having regard to the views and circumstances of the employees and each employer covered by the Agreement; noting that no employee organisation is covered by the Agreement.

[7] Therefore, in accordance with s 226 of the Act, I must terminate the Agreement and such termination is approved. The termination of the Agreement will take effect on and from 1 November 2019. An order to this effect will be published simultaneously with this decision.

DEPUTY PRESIDENT

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