Gate Gourmet Cairns Pty Ltd T/A Gate Gourmet

[2020] FWCA 5790

[2020] FWCA 5790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Gate Gourmet Cairns Pty Ltd T/A Gate Gourmet
(AG2020/3021)

GATE GOURMET CAIRNS ENTERPRISE AGREEMENT 2014-2016

Airline operations
COMMISSIONER SPENCER	BRISBANE, 29 OCTOBER 2020

Application for termination of the Gate Gourmet Cairns Enterprise Agreement 2014-2016.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Gate Gourmet Cairns Pty Ltd T/A Gate Gourmet (the Applicant) to terminate the Gate Gourmet Cairns Enterprise Agreement 2014-2016 (the Agreement).

[2] The Agreement is an enterprise agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 31 January 2017.

[3] Sections 225 and 226 of the Act provide:

“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.”

[4] Mr Samuel Cordoba, Human Resource Manager for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr Cordoba stated that the Applicant sought the termination of the Agreement on the basis that the site the Agreement applied to is no longer in operation; the Applicant no longer has any operations in Cairns; no employees are employed under the coverage of the agreement; and the agreement has no influence, material or otherwise, on any other group outside of its coverage or application clauses.

[5] Mr Cordoba stated that no employees are currently employed by the Applicant under this Agreement and that the Applicant had closed the facility and ceased operations in Cairns. Mr Cordoba said that none of the roles covered by the Agreement based in Cairns were required and employees were terminated by reason of redundancy on the 27 September 2020. Subsequently, Mr Cordoba said that no employees are covered by the Agreement and as such termination would have no adverse effect. Mr Cordoba said termination of the Agreement would serve as part of the Applicant’s process to administratively close operations in Cairns.

[6] The Transport Workers’ Union of Australia (the TWU) was a party to the Agreement. On 29 October 2020 I wrote to the TWU and requested they advise whether they supported termination of the Agreement or opposed the termination. On 29 October 2020 the TWU advised by email that it had confirmed that the Gate Gourmet site in Cairns had closed and all employees had been made redundant. The TWU said that there are no employees currently covered by the Agreement and therefore the TWU did not object to the termination of the Agreement.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the agreement on the basis that the material satisfies the legislative requirements that the termination of the Agreement is appropriate. I am satisfied it is not contrary to the public interest to terminate the Agreement. The application is therefore granted and the Agreement is terminated. Termination of the Agreement will take effect from 29 October 2020.

[8] I Order accordingly.

COMMISSIONER

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