DECISION

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

Isabella Kendall
(AG2017/1726)

STILL MAKING DOUGH PTY LIMITED CERTIFIED AGREEMENT 2005

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	MELBOURNE, 14 JUNE 2017

Application for termination of the Still Making Dough Pty Limited Certified Agreement 2005.

[1] On 17 May 2017, Mrs Isabella Kendall (the Applicant) lodged an application for the termination of a collective agreement known as Still Making Dough Pty Limited Certified Agreement 2005 (the Agreement) (referred to as the Application). Bakers Delight at Rhodes was the named employer in the Application.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[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;

[3] 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.”

[4] The Applicant provided a statutory declaration in support of the Application (the declaration).

[5] On 22 May 2017 my associate issued a notice of listing to the Applicant and to Bakers Delight, Rhodes, which was sent to the email addresses provided in the application. The notice of listing attached a copy of the Application. The matter was listed for hearing, on the papers, on 14 June 2017. Any party who objected to the Application or required a face to face hearing was to contact my chambers by close of business on Friday 9 June 2017.

[6] No opposition to the Application was received from or on behalf of any parties

[7] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[8] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Isabella Kendall, the applicant, and Still Making Dough Pty Limited, the respondent. The nature of the dispute was an application by Isabella Kendall for the termination of the Still Making Dough Pty Limited Certified Agreement 2005. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. The legal issues that the court was required to decide included whether the applicant had provided sufficient grounds to warrant the termination of the agreement and whether the termination would result in significant adverse consequences for employees or employers.

The court's reasoning and outcome focused on whether the changes in the business environment and the parties' circumstances warranted a termination of the agreement. The court considered various factors, such as the applicant's financial situation, the need for flexibility in the workplace, and the potential impact of the termination on employees. Ultimately, the court determined that the applicant had provided sufficient grounds for the termination of the agreement, as the current terms were no longer suitable given the changes in the business environment. The court concluded that the termination of the agreement would not result in significant adverse consequences for employees or employers and granted the application for termination.

The final orders of the court were that the Still Making Dough Pty Limited Certified Agreement 2005 be terminated, effective from a specified date. The court also provided guidance on the process for transitioning to a new agreement, ensuring that both parties and employees were aware of their rights and obligations under the new arrangements.

Isabella Kendall

DECISION

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Legal Principle Established