Gold Spot Pty Ltd

[2020] FWCA 2673

[2020] FWCA 2673

The attached document wholly replaces the document issued on 21 May 2020 with the code [2020] FWC 2634 to correct document referencing.

Associate to Deputy President Gostencnik

Dated 21 May 2020

[2020] FWCA 2673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Gold Spot Pty Ltd
(AG2020/1333)

SAAN FOOD ENTERPRISE AGREEMENT 2014

Fast food industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 MAY 2020

Application for termination of the SAAN Food Enterprise Agreement 2014.

[1] Gold Spot Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the SAAN Food Enterprise Agreement 2014 (Agreement).

[2] The Agreement has passed its nominal expiry date.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] The Agreement is expressed to cover Saan Food Pty Ltd and its employees in the job classifications set out in the Agreement. The statutory declaration filed in support of the application by Mr Dipesh Golwala of the Applicant states that a transfer of business ownership occurred between Saan Food Pty Ltd and the Applicant on 1 May 2019. As such, I am satisfied that the Applicant is an employer covered by the Agreement in its capacity as the new employer following a transfer of business and is therefore entitled to make an application to the Commission for termination of the Agreement.

[6] Mr Golwala declares inter alia that the relevant industrial instrument provides more favourable terms and conditions than the Agreement.

[7] Based on the material contained in the employer’s statutory declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[8] The termination will operate from 21 May 2020.

[9] An order giving effect to this decision is separately issued in PR719507.

DEPUTY PRESIDENT

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