Imogen Renfrey

[2021] FWC 5250

[2021] FWC 5250

FAIR WORK COMMISSION

STATEMENT

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

Imogen Renfrey
(AG2021/6327)

BAKERS DELIGHT (SA) ENTERPRISE AGREEMENT 2012

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 26 AUGUST 2021

Application for termination of the Bakers Delight (SA) Enterprise Agreement 2012.

[1] This Statement concerns an application by Ms Imogen Renfrey (the Applicant) pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Bakers Delight (SA) Enterprise Agreement 2012 (Agreement).The Agreement commenced operation on 19 December 2012 and has a nominal expiry date of 18 December 2016. There are no employee organisations covered by this Agreement.

[2] The Agreement covers and applies to a number of employers, and their employees, who conduct retail bakeries which trade within the Bakers Delight franchise arrangements in South Australia. Ms Renfrey is employed by one of the employers covered by the Agreement and is also herself covered by that instrument.

[3] If the Agreement is terminated, this would impact upon all of the parties covered by it, and not just Ms Renfrey and her employer. As a result, prior to conducting any proceedings in this matter, the Commission made arrangements to properly identify and notify all of the employers who are now covered by the Agreement. This was important given the likelihood that some of the businesses involved may have been transferred to new employers since its approval and become subject to the Agreement by virtue of the operation of the Act. 1 This task was completed with the assistance of Bakers Delight Holdings Ltd (Bakers Delight Holdings) and information provided by some of the originally named employers, all of whom were also notified of the application and the proceedings.

[4] In the event that the Agreement were to be terminated, the General Retail Industry Award 2020 (GRI Award) would apply 2 to all of the parties.

[5] The Act relevantly 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.

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.

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.”

[6] Given the status of the Agreement, Ms Renfrey is entitled to apply for its termination pursuant to s.225 of the Act.

[7] A preliminary conference was conducted in this matter on 25 August 2021. As outlined above, all employers now covered by the Agreement were provided with the application and notified of the conference in order to provide them with an opportunity to be heard.

[8] Ms Renfrey appeared on her own behalf. Ms Byrdy appeared on behalf of Bakers Delight Holdings and coordinated the views of the 11 employers now covered by the Agreement. Mr Faneco, Mr Hardie, and Ms Siedlaczek, on behalf of 3 of the employers covered by the Agreement, also appeared and outlined their respective positions in relation to the application.

[9] The application was accompanied by a statutory declaration of Ms Renfrey setting out the grounds for the application. During the conference, Ms Renfrey expanded upon those grounds for seeking to revert to the relevant modern award, namely the GRI Award. These included contentions to the effect of the following:

•  The Agreement is outdated and has not kept up to date with the modern award;

•  Many employees covered by the Agreement are dissatisfied with the terms and entitlements provided by the Agreement when compared to what is contained in the modern award;

•  Those staff not covered by the Agreement are being paid shift penalty rates which makes those covered by the Agreement worse off leading to an uneven playing field both within the same business and more generally;

•  The employers concerned could make a new Enterprise Agreement if the modern award was not suitable; and;

•  It is in the public interest that all employees are being paid fairly and equally for doing the same work.

[10] Bakers Delight Holdings confirmed that the application would not be opposed. However, given the impact of the termination of the Agreement upon the businesses concerned and their employees, an extended “transition” period of 3 months would be sought to enable the employers to review and make any required changes to rosters after consultation with their staff, and to adjust payroll systems. Mr Faneco, Mr Hardie and Ms Siedlaczek all broadly confirmed this position and emphasised the potential impact upon weekend pay rates, and potentially upon the current commencement time of some baking staff, given the provisions of the GRI Award. The employers also contended that there were some constraints in making a new enterprise agreement.

[11] The Commission has also been informed that amongst the employers concerned, some apply the Agreement to all staff (subject to the application of any higher base rates from the GRI Award), 3 some apply the Agreement (on the same basis) to staff that were “transferred” along with the Agreement when they acquired the business and the GRI Award to employees subsequently engaged, and others already apply the more beneficial terms of the GRI Award to all of their employees.

[12] During the conference, Ms Renfrey, in effect, accepted that a delay in the termination date of something in the order of 3 months would not be unreasonable.

[13] I accept that a valid application has been made. Having had regard to the material provided with the application and to the positions advanced during the conference, I have formed the provisional view that the Agreement should be terminated. Further, in the event that the Agreement is terminated, it is also my provisional view that a delay in the date of effect of that termination in the order of 3 months would be appropriate. 4

[14] However, before making any decision determining this application, it is appropriate that I provide the parties covered by the Agreement, being the employers and their employees, with an opportunity to confirm their positions to the Commission so that these can be further taken into account as required by s.226 of the Act.

[15] I direct that where practicable, each of the employers covered by the Agreement is to provide each employee covered by the Agreement with access to this Statement by Friday 3 September 2021.

[16] Any party opposed to the provisional view that the Agreement should be terminated with a delay of 3 months in its effect is to file with the FWC a short written submission setting out the basis of their opposition by 4 pm Friday 17 September 2021. These submissions will be consolidated and provided to Ms Renfrey and Bakers Delight Holdings by the Commission shortly thereafter.

[17] In the event that no submissions opposing the provisional view are received by the Commission by 4pm Friday 17 September 2021, the Commission will proceed to deal with the matter on the materials already provided and issue a termination decision.

[18] In the event that there are opposing submissions provided by the due date, any additional submissions in response are to be provided to the Commission and to the other parties appearing in this matter by no later than 4 pm Friday 24 September 2021. The Commission will then consider all of the submissions and assess whether further proceedings are required before determining the application.

[19] All submissions to the Commission are to be sent to [email protected].

[20] General liberty to apply has also been granted.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Section 313 of the Act.

 2   Given the coverage of the GRI Award and the operations of .47 of the Act.

 3   As required by s.206 of the Act.

 4   Having regard to the various considerations summarised in Olivia May Johnston-Wyly (The Yoghurt Shop Pty Ltd Collective Agreement Number One (2006)) [2018] FWCA 908 at [46] and the circumstances advanced in this matter.