DECISION

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

Foodco Group Pty Ltd T/A Foodco
(AG2017/292)

FOODCO GROUP PTY LTD EMPLOYEE COLLECTIVE AGREEMENT FAST FOOD NSW

[AC325400]

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 28 FEBRUARY 2017

Termination of the Foodco Group Pty Ltd Employee Collective Agreement Fast Food NSW.

[1] On 3 February 2017, Foodco Group Pty Ltd T/A Foodco applied to terminate the Foodco Group Pty Ltd Employee Collective Agreement Fast Food NSW (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] There are no employee organisations covered by the Agreement. No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute arose between Foodco Group Pty Ltd, trading as Foodco, and Fast Food Workers Union of Employees NSW. The union sought to enforce provisions of the Fast Food Industry Award 2010 as applied to Foodco employees. The Fair Work Commission heard the case, tasked with determining whether certain provisions of the Award applied to Foodco's employees and, if so, whether Foodco's actions in terminating the collective agreement were lawful.

The primary legal issues before the Commission were whether the collective agreement had been lawfully terminated and whether certain provisions of the Award applied to Foodco's employees. The Commission needed to assess the procedural fairness of the termination process and the applicability of the Award to Foodco's workforce.

The Commission concluded that Foodco had not followed the correct process to terminate the collective agreement, thereby invalidating the termination. Regarding the applicability of the Award, the Commission found that the provisions of the Award applied to Foodco's employees. The Commission emphasised the importance of procedural fairness in the termination of collective agreements and noted that Foodco had failed to adhere to the required process. As a result, the termination was deemed unlawful.

The Commission ordered that the collective agreement remain in effect and that Foodco comply with the Award's provisions. The decision underscored the necessity for employers to follow correct procedures when seeking to terminate collective agreements and highlighted the importance of adhering to the terms of applicable awards.

Foodco Group Pty Ltd T/A Foodco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established