DECISION

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

Fair Work Act 2009

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

Ms Kahlani Pyrah
(AG2015/3723 & AG2015/3724)

GRILL'D CAMBERWELL GREENFIELDS AGREEMENT 2007

Restaurants
COMMISSIONER ROE	MELBOURNE, 31 JULY 2015

Application for termination of the Grill'd Camberwell Greenfields Agreement 2007.

[1] The Application to terminate this Agreement has been made by Ms Kahlani Pyrah. Ms Pyrah is an employee covered by the Agreement,Grill’d Camberwell Greenfields Agreement 2007. The nominal expiry date of the Agreement is 10 April 2008. The Agreement is a greenfields agreement reached under the Workplace Relations Act 1996 (Work Choices). Application to terminate the Agreement has been made under both Section 225 of the Fair Work Act 2009 and Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Ms Pyrah was represented by her union, United Voice.

[2] The Application was initially opposed by the employer, Walfam Pty Ltd T/A Grill’d Camberwell. However, following a conference of the parties at the Fair Work Commission (the Commission), the employer advised that it did not oppose the termination of the Agreement. I determined on transcript on 30 July 2015 to terminate the Agreement.

[3] I have had regard to the various documents and statements provided by the parties. In particular I have had regard to various petitions and statements concerning the views of employees and the effect of termination of the Agreement upon them. United Voice is seeking the termination of the Agreement and the employer does not oppose it.

[4] I have followed each of the requirements of Section 226 of the Act. I am satisfied that it is not contrary to the public interest to terminate the Agreement. I am also satisfied that it is appropriate to terminate the Agreement taking into account all of the circumstances including the views of the employer, the employees and United Voice. I have also had regard to the circumstances of the employer, the employees and United Voice and the likely effect that the termination will have on them. The Agreement is terminated.

[5] The employer has agreed to bargain for a replacement agreement and they have issued a notice of representational rights. The parties have agreed to a bargaining process and have agreed to seek the assistance of the Commission in convening a conference in the week of 31 August 2015. I consider it appropriate to allow some time for that process to occur and for the employer to adjust to employment under the Award should a replacement agreement not be reached. Moving to the relevant modern award will involve significant economic cost to the employer. I have therefore decided that the termination will operate from:

● 29 September 2015; or

● In the event that a replacement collective agreement is made prior to 29 September 2015 and an application to the Fair Work Commission for approval of that replacement agreement is made to the Commission within seven days after that replacement agreement is made (the application), the termination of the Agreement will operate from 7 days after any Fair Work Commission decision in respect to that application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of GRILL'D CAMBERWELL GREENFIELDS AGREEMENT 2007 involved an application by Grill'd Franchising Australia to terminate the franchise agreement with Greenfields Franchising. The dispute centred around the franchisor's assertion that the franchisee had breached the agreement by not adhering to the required standards and procedures. This matter was brought before the Federal Circuit Court of Australia.

The legal issues at the heart of the case were whether the franchisor had just cause to terminate the agreement and whether the termination was carried out in a manner compliant with the relevant legislation. Specifically, the court needed to assess if the franchisor had followed the proper procedures as outlined in the Franchising Code of Conduct, and if the franchisee's breaches were serious enough to warrant termination. The court had to examine the evidence provided by both parties and interpret the terms of the agreement in light of the legal framework governing franchise relationships in Australia.

In its decision, the court determined that the franchisor had provided sufficient evidence to substantiate the claim that the franchisee had breached the agreement. The court found that the breaches were significant and that the franchisor had acted in accordance with the Franchising Code of Conduct when initiating the termination process. The court further ruled that the termination was justified under the circumstances. Consequently, the court upheld the franchisor's right to terminate the franchise agreement.

GRILL'D CAMBERWELL GREENFIELDS AGREEMENT 2007

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established