Joan & Brian Preece (Partnership) T/A Donut King Endeavour Hills

[2016] FWCA 8048

[2016] FWCA 8048

FAIR WORK COMMISSION

DECISION

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

Joan & Brian Preece (Partnership) T/A Donut King Endeavour Hills
(AG2016/4541)

DONUT KING ENDEAVOUR HILLS EMPLOYER GREENFIELDS AGREEMENT (2007)

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 8 NOVEMBER 2016

Application for termination of the Donut King Endeavour Hills Employer Greenfields Agreement (2007).

[1] On 19 July 2016, Mr Brian Preece and Ms Joan Preece filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Donut King Endeavour Hills Employer Greenfields Agreement (2007) (the Agreement).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] On 28 September 2016, an email was sent to the current franchisee of Donut King Endeavour Hills, notifying them of the application and seeking their advice as to any transferring employees, whether any application to terminate the Agreement had been made and whether a new enterprise agreement had been made.

[4] On 4 November 2016, the current franchisee contacted my chambers and advised Mr Brian Preece and Ms Joan Preece had sold the business, however, no employees transferred and all new staff were appointed.

[5] The Act relevantly provides as follows:

“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] I am satisfied Mr Brian Preece and Ms Joan Preece are eligible to apply to the Fair Work Commission for the termination of the Agreement under s.225(a) of the Act.

[7] In having regard to the requirements of s.226 of the Act and the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate taking into account all the circumstances.

[8] In accordance with s.227 of the Act, the termination will take effect from 8 November 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AC309134  PR587325>