Gate Gourmet Services Pty Ltd T/A Gate Gourmet

[2020] FWCA 4882

[2020] FWCA 4882

FAIR WORK COMMISSION

DECISION

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

Gate Gourmet Services Pty Ltd T/A Gate Gourmet
(AG2020/2424)

GATE GOURMET DARWIN ENTERPRISE BARGAINING AGREEMENT 2011-2014

Northern Territory
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2020

Application for termination of the Gate Gourmet Darwin Enterprise Bargaining Agreement 2011-2014 – views of the parties considered – termination of Agreement not contrary to the public interest.

[1] This is an application, filed on 14 August 2020, by Gate Gourmet Services Pty Ltd T/A Gate Gourmet (the ‘applicant’) pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Gate Gourmet Darwin Enterprise Bargaining Agreement 2011 - 2014 [AE891688] (the ‘Agreement’). The Agreement no longer covers any of the applicant’s employees and passed its nominal expiry date on 23 February 2015.

[2] The provisions of the Act governing applications of this kind, 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 employees 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 is:

(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.

[3] In a statutory declaration accompanying the application (Form F24C), Mr Samuel Cordoba, Human Resources Manager, stated that the Agreement does not cover any employees, and the Agreement which covered the location and business contract is no longer in the applicant’s scope of works.

[4] In the application (Form F24B), Mr Cordoba indicated that the Transport Workers’ Union of Australia (‘TWU’), was covered by the Agreement. My Chambers sent an email to the TWU on 18 August 2020, which read:

‘Dear Mr Burnell,

I refer to the attached s 225 application made by Gate Gourmet Services Pty Ltd T/A Gate Gourmet, which lists your Union as being covered by the agreement which is sought to be terminated. His Honour seeks the Union’s views on this application, and whether it does or does not consent to the agreement being terminated. Please do so by no later than close of business Friday 28 August 2020.

Kind regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[5] Mr J Boughey, Industrial Officer of the TWU, responded on 11 September 2020 as follows:

‘Good morning Daniel,

We refer to the application made by Gate Gourmet Services Pty Ltd to terminate the Gate Gourmet Darwin Enterprise Bargaining Agreement 2011-2014.

The TWU does not object to the application to terminate the Agreement.

We apologise to His Honour for the delayed response to this matter.’

[6] Having considered the application, the accompanying statutory declaration, the views of the parties and the terms of the Agreement, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement.

[7] Accordingly, the Gate Gourmet Darwin Enterprise Bargaining Agreement 2011 – 2014 is terminated. Pursuant to s 227 of the Act and by consent, the termination is to take effect on and from today’s date.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE891688  PR722705>