Imogen Renfrey

[2021] FWCA 5923

[2021] FWCA 5923

FAIR WORK COMMISSION

DECISION

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, 22 SEPTEMBER 2021

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

[1] This decision concerns an application by Ms Imogen Renfrey (the Applicant) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Bakers Delight (SA) Enterprise Agreement 2012 (the Agreement). The Agreement was approved by the Commission on 12 December 2012. 1 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

[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] A Preliminary Conference (the Conference) was conducted in this matter on 25 August 2021. Ms Renfrey appeared at the Conference on her own behalf. Given that any termination would impact on all parties covered by the Agreement, not just Ms Renfrey and her employer, arrangements were made to correctly identify and advise all employers covered by the Agreement in advance of the Conference. Ms Byrdy appeared on behalf of Bakers Delight Holdings Ltd (Bakers Delight Holdings) and coordinated the views of the covered employers. Mr Faneco, Mr Hardie, and Ms Siedlaczek, on behalf of 3 of the employers, also appeared and outlined their respective positions in relation to the application.

[4] Having heard from the parties, at the conclusion of the Conference, a Statement 3 was issued setting out the Commission’s provisional view that the Agreement should be terminated, and in the event that the Agreement was terminated, a delay in the date of effect of that termination in the order of 3 months would be appropriate.

[5] Directions were also issued at that time which required that where practicable, each of the employers covered by the Agreement was to provide each employee covered by the Agreement with access to the Statement by Friday 3 September 2021. Further, the Statement provided that:

•  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; and

•  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.

[6] There have been no submissions made to the Commission opposing the provisional view. In line with the above arrangements, I have now determined this application based upon the present materials before the Commission including the positions advanced at the Conference.

[7] This Decision should be read in conjunction with the Statement.

[8] The FW 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.”

[9] I observe that the principles to be applied to these provisions was summarised by the Full Bench of the Commission in Wollongong Coal Limited T/A Wollongong Coal. 4

[10] 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 General Retail Industry Award 2020 (GRI Award). These included contentions, which are largely uncontroversial, 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.

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

[12] Bakers Delight Holdings confirmed at the Conference that the application would not be opposed. However, a “transition” period in the order of 3 months would be sought to enable employers to review and make required changes to store rosters and payroll systems after consulting with their staff. This submission was also made in the context of the employers expressing some concerns about the potential impact of the termination 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. In all of the circumstances, including that Ms Renfrey did not oppose the employers’ request, I considered that the delay in the date of effect of the termination was reasonable having regard to the various considerations summarised in Olivia May Johnston-Wyly (The Yoghurt Shop Pty Ltd Collective Agreement Number One (2006)). 5.

[13] I accept that a valid application has been made. Having had regard to the material provided with the application and the submissions of the parties at the Conference, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. I also consider that it is appropriate in all of the circumstances, including having regard to the circumstances and views of the relevant parties - including the impact of the termination, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[14] The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 23 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   [2012] FWAA 10455.

 2   What is now known as the United Workers Union (UWU) participated in the approval proceedings but is not covered by the Agreement.

 3   [2021] FWC 5250.

 4   [2021] FWCFB 2161 at [6] to [13].

 5   [2018] FWCA 908 at [46].