Kiash Investments Pty Ltd ATF Kiash Family Trust T/A Bakers Delight Caringbah

[2019] FWCA 8013

[2019] FWCA 8013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Kiash Investments Pty Ltd ATF Kiash Family Trust T/A Bakers Delight Caringbah
(AG2019/3728)

BAKERS DELIGHT CARINGBAH EMPLOYEE COLLECTIVE AGREEMENT (NEW SOUTH WALES) 2007

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 16 DECEMBER 2019

Application for termination of the Bakers Delight Caringbah Employee Collective Agreement (New South Wales) 2007.

Introduction

[1] On 1 October 2019, Kiash Investments Pty Ltd ATF Kiash Family Trust trading as Bakers Delight Caringbah (the employer), made an applicationto terminate the Bakers Delight Caringbah Employee Collective Agreement (New South Wales) 2007 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act).

[2] Section 225 of the Act states 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.”

(My underline)

[3] Clause 4 of the Agreement provides that the Agreement will “remain in operation for a period of at least 3 years from the lodgement date (“the nominal expiry date”).” The Workplace Relations Act 1996 (Cth), which was in operation at the time, stipulated that the nominal expiry date of a workplace agreement which does not specify an expiry date is “the fifth anniversary of the date on which the agreement was lodged.” 1 The Agreement was lodged with the Workplace Authority on 24 November 2007. At the very latest, the nominal expiry date was passed on and from 24 November 2012.

[4] Based on the above, I am satisfied that the applicant is an employer covered by the Agreement and has standing to make the termination application and further that the Agreement has passed its nominal expiry date.

[5] I am therefore satisfied the requirements of s.225 of the Act are met.

[6] Section 226 of the Act relevantly states as follows:

“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.”

[7] The Agreement, being approved by the Workplace Authority in 2007, is a ‘Transitional Agreement’ pursuant to Schedule 3 Part 2 Item 2(1) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). A s.225 application to terminate a transitional instrument is made pursuant to Item 16 of Schedule 3 of the Transitional Act which provides as follows:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[8] The appropriate form to complete is Form F28 - Application for termination of collective agreement-based transitional instrument. However, a Form F24B Application for termination of an enterprise agreement after the nominal expiry date has been used. Pursuant to Rule 6 of the Fair Work Commission Rules the requirement to file a Form F28 is waived.

The views of the employees

[9] The employer has provided in support of its application a statutory declaration from Mr Danesh Kiash, Franchisee of Bakers Delight. Mr Kiash declared that there are employees covered by the Agreement and that, should the Agreement be terminated, the General Retail Industry Award 2010 2 (the Award) would apply to employees who were covered by the Agreement.

[10] The application was accompanied by emails from seven persons who all stated they are employees covered by the Agreement and are aware of the application to terminate the Agreement; and, that if the Agreement was terminated their employment conditions would be subject to the Award.

[11] On 14 November 2019, my Chambers wrote to Mr Kiash seeking confirmation whether the above-mentioned seven employees represent all employees covered by the Agreement. The correspondence stated that in the event there are other employees covered by the Agreement, the Commission sought their views in accordance with sub-ss.226(b)(i) of the Act by close of business on 21 November 2019.

[12] Mr Kiash advised that the seven emails he provided with the application did not account for all employees covered by the Agreement. He confirmed that there was a further employee covered by the Agreement whose email agreeing to the transfer to the Award he had mistakenly omitted to send with the original application. Mr Kiash attached a copy of the employee’s email, in which the employee confirmed her acceptance and willingness to transfer to the Award.

[13] The Commission has not otherwise received to date any other correspondence from employees covered by the Agreement regarding the application to terminate the Agreement.

The Circumstances of the Employees/Employers and the Likely Effect of the Termination

[14] Mr Kiash states that the effect of terminating the Agreement would provide increases in penalty rates for employees who work on Sundays.

[15] Mr Kiash submitted that if the Award was to apply to the Agreement covered employees, they would not be left with conditions less favourable than those they currently enjoy.

[16] Mr Kiash also declared that termination of the Agreement would make it administratively easier for the employer as all employees would be employed under the same industrial instrument. Mr Kiash has stated that when he took over the business in 2017, he left all the transferring employees on the Agreement as he thought that was the simplest and easiest option for him to manage. When he started to hire new staff, he realised he was unable to hire them under the Agreement as the Agreement could only be used by the previous owner of the business. Rather than initiate a new agreement, he applied the Award to all new staff.

[17] To have all staff under one Award would be administratively easier and the staff themselves are keen to move to the Award.

Public Interest

[18] Mr Kiash’s declaration states that it would not be contrary to the public interest to terminate the Agreement. It is now 12 years since the Agreement commenced operation; it does not reflect many of the Award conditions and the wage rates are below the Award. Mr Kiash confirmed that he currently pays the Agreement covered employees the Award rate.

[19] I have considered the circumstances of the employees and the likely effect that termination of the Agreement would have on them, and note the Agreement covers employees in both sales and production positions, including managers and apprentices and contains rates of pay for casual employees, juniors and trainees. It also defines Bakery Managers, Trainee Bakery Managers and Trainee Product Managers as ‘salaried employees.’

Conclusion

[20] I am satisfied that the views of the employees covered by the Agreement have been sought in accordance with s.226(b)(i) of the Act. I note there is no employee organisation covered by the Agreement.

[21] I am otherwise satisfied, including for the reasons put forward by the employer, that it is not contrary to the public interest to terminate the Agreement.

[22] 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.

[23] Section 227 of the Act provides that if an enterprise agreement is terminated under s.226 of the Act, the termination operates from the day specified in the decision to terminate the Agreement. Accordingly, the termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

 1   Workplace Relations Act 1996 (Cth), s.352.

 2   MA000004.

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