Granphil Pty Ltd T/A Bakers Delight Rye

[2017] FWCA 6691

[2017] FWCA 6691

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Granphil Pty Ltd T/A Bakers Delight Rye
(AG2017/5622)

BAKERS DELIGHT RYE COLLECTIVE AGREEMENT

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 DECEMBER 2017

Application for termination of the Granphil Pty Ltd t/a Bakers Delight Rye Collective Agreement (Victoria) 2006.

[1] On 21 November 2017, Granphil Pty Ltd T/A Bakers Delight Rye (the Employer) made an application pursuant to Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Transitional Act) to terminate the Granphil Pty Ltd t/a Bakers Delight Rye Collective Agreement (Victoria) 2006 (the Agreement).

Legislative provisions

[2] Schedule 3, Item 15 of the Transitional Act provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act2009 (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.

[3] Part 2-4, Division 7, Subdivision C of the Act relevantly provides as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[4] The Application was supported by a statutory declaration from Mr Grant Wickes, Director/Franchisee. On 1 December 2017, I caused correspondence to be sent to Mr Wickes, outlining some deficiencies contained in the Application and statutory declaration which I intended to address at a telephone mention.

[5] On 7 December 2017, I convened a brief telephone mention in which Mr Wickes advised he would file a further statutory declaration to address my concerns. The second statutory declaration was filed by Mr Wickes on 8 December 2017.

[6] The second statutory declaration declared, among other things, that all staff were notified via email on 13 November 2017 that the Employer had had the Agreement reviewed and it had been advised by the Bakers Association of Australia to move to the relevant Modern Award. Staff were provided with a copy of the Award and rates via the email. Mr Wickes said staff under the age of 18 years were asked that they show this to their parents and any queries could be raised with him. Mr Wickes said he advised that on 20 November 2017 there would be a staff meeting at 4.00pm to vote, with all staff members attending.

[7] On 20 November 2017, Mr Wickes said of the 14 employees covered by the Agreement, all 14 voted to terminate the Agreement. With the Application made within 14 days of this date, s.222(3)(a) of the Act is satisfied.

[8] On 13 December 2017, I caused directions to be sent to the Employer which said reasonable arrangements were to be made to provide a copy of the directions, the Application and the second statutory declaration to all employees covered by the Agreement and to display the documents on a noticeboard at Bakers Delight Rye, by close of business on 15 December 2017. On 15 December 2017, Mr Wickes confirmed this direction had been complied with.

[9] The directions provided that if any employee opposed the Application, advice should be given, in writing, to my chambers by close of business on 20 December 2017. No advice or correspondence was received from any employee. No employee organisation is covered by the Agreement.

[10] The Agreement appears to have been made in or around 2006 and lodged on 15 February 2007. It was to remain in operation for a period of at least three years from the lodgement date. The Agreement provides that ordinary rates of pay would be increased during its life in the event they fell below the relevant minimum wage set by the Australian Fair Pay Commission from time to time or at the employer’s discretion. As to penalty rates payable, I am satisfied that Modern Award rates are superior to those applicable in the Agreement. Accordingly, I am satisfied that employees employed under the Agreement would not be disadvantaged if it was terminated and the relevant Modern Award covered them instead and that it is appropriate to approve the termination of the Agreement.

[11] In consideration of the material before me, I am satisfied that the requirements in s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement.

[12] The termination will take effect from 21 December 2017.

DEPUTY PRESIDENT

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<Price code A, AC304974  PR598677>