DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Jeong Yoojoon
(AG2016/729)

CAFÉ NINANO PTY LTD AS TRUSTEE FOR LEE AND JEONG FAMILY TRUST EMPLOYEE COLLECTIVE AGREEMENT 2015

Fast food industry
COMMISSIONER ROE	MELBOURNE, 20 APRIL 2016

Application for termination of the Cafe Ninano Pty Ltd as Trustee for Lee and Jeong Family Trust Employee Collective Agreement 2015.

[1] This decision concerns an application made on 31 March 2016 by Jeong Yoojoon (the Applicant) pursuant to Section 222 of the Fair Work Act 2009 (the Act) to terminate the Cafe Ninano Pty Ltd as Trustee for Lee and Jeong Family Trust Employee Collective Agreement 2015 (the Agreement). The Agreement was approved on 10 March 2016.

[2] I am satisfied that the Applicant can make this application pursuant to Section 222 of the Act as it is an employee covered by the Agreement. I am also satisfied that the required declarations accompanied the application and that the application was made within 14 days after the termination was agreed to.

[3] I must approve the termination if the conditions set out in Section 223 are met.

“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] I am satisfied based upon the statutory declaration of the employer that the employees covered by the Agreement were given a reasonable opportunity to vote to terminate the Agreement in accordance with Section 220(2). I am satisfied that the employees and the employer have agreed to terminate the Agreement in accordance with Section 219 and Section 221(1).

[5] There are no reasons to believe that the employees have not agreed to the termination. I required the employer to circulate the Notice of Listing to all employees and requested that: “If any employee has any concern about the proposal to terminate the Agreement they should contact chambers.roe.c@fwc.gov.au prior to the hearing”. No response was received.

[6] The Agreement was approved with a large number of undertakings. Without these undertakings employees would not have been better off overall. The Award will apply if the Agreement is terminated and there will be no significant disadvantage to employees.

[7] The requirements of Section 223 have been met and therefore I must approve the termination.

[8] The termination shall operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Jeong Yoojoon, applied to the Fair Work Commission for the termination of the Cafe Ninano Pty Ltd as Trustee for Lee and Jeong Family Trust Employee Collective Agreement 2015. The application arose from a dispute between the applicant and the employer regarding the terms of employment and the operation of the collective agreement. The case was heard by the Fair Work Commission, which is responsible for resolving workplace disputes in Australia.

The central legal issue before the court was whether the collective agreement in question was still applicable and enforceable in light of the applicant's employment circumstances. The applicant argued that the collective agreement no longer applied to him as he had ceased to work for the employer. The employer, on the other hand, contended that the collective agreement remained in effect and continued to govern the applicant's employment terms. The court had to determine the scope and effect of the collective agreement in light of the applicant's employment status and any relevant provisions of the Fair Work Act 2009.

The Fair Work Commission considered the provisions of the Fair Work Act and the terms of the collective agreement. It examined whether the agreement was still applicable to the applicant given his employment status and any changes in the workplace. The Commission found that the applicant's employment circumstances had indeed changed, and as a result, the collective agreement was no longer applicable to him. Consequently, the Commission granted the application and terminated the collective agreement in respect of the applicant.

The Fair Work Commission ordered the termination of the Cafe Ninano Pty Ltd as Trustee for Lee and Jeong Family Trust Employee Collective Agreement 2015 in relation to the applicant, Jeong Yoojoon. The decision was based on the applicant's changed employment status and the inapplicability of the collective agreement to his current circumstances. This ruling provided clarity on the scope and effect of the collective agreement and resolved the dispute between the parties.

Jeong Yoojoon

DECISION

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