Makayla Waller

[2019] FWCA 1769

[2019] FWCA 1769

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Makayla Waller
(AG2019/324)

RED ROOSTER AGREEMENT 2008

Restaurants
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 19 MARCH 2019

Application for termination of the Red Rooster Agreement 2008 – no objection to termination but disagreement about the date of effect – agreement terminated from 1 April 2019

[1] On 12 February 2019 Makayla Waller applied for the termination of the Red Rooster Agreement 2008 (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] On 25 February 2019 I directed any party who opposed the application to advise my chambers by 5:00 pm on 15 March 2019. The parties were also advised that the Agreement would be terminated effective 18 March 2019 if no objection was received by the specified time.

[3] No opposition to the application was received from or on behalf of any parties; however Ms Milne, (Employee Relations Consultant, Craveable Brands Pty Ltd), wrote to my chambers on 13 March 2019 requesting:

“in the event that there are no objections received regarding the termination of the Red Rooster Agreement 2008, that for practical reasons, the date of termination listed as 18th March, 2019 is amended to Monday 1st April, 2019”.

[4] On 13 March 2019 I directed any party who wished to provide their views on Ms Milne’s request to do so by 5:00 pm on 15 March 2019.

[5] Mr Moore, the applicant’s representative, emailed my chambers on 13 and 14 March 2019, strongly disagreeing with Ms Milne’s request, and asking that the Agreement be terminated effective 18 March 2019.

The hearing

[6] At the telephone hearing before me today, Ms Milne confirmed that she had no objection to the application, but requested that the date of effect of the termination be 1 April 2019, for logistical reasons.

[7] Mr Moore objected to the date of effect being 1 April 2019 on the basis that the employees, “had gone long enough being underpaid, and the longer this goes on, the longer they will go without.” He requested that the Agreement be terminated as soon as possible.

[8] Mr Pardo appeared for the Distributive and Allied Employees Association (the SDA) and said that he empathised very strongly with Mr Moore, but also noted that the SDA and the Company are in discussions about a new BOOT compliant Enterprise Agreement and that this would result in a better outcome for employees, both in terms of wages and entitlements, than the Award.

[9] Ms Lomax (Director, Dasumatr Pty Ltd t/a Red Rooster Orange and Dubbo) stated that they have complied with all the applicable pay rates to date and they will be instructed by Craveable Brands as to which instrument will apply.

The legislation

[10] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

Consideration

[11] Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[12] It is reasonable to give the employer some time to change their pay roll system. The termination will therefore come into effect from 1 April 2019.

SENIOR DEPUTY PRESIDENT

Appearances:

M Moore, for the applicant

A Milne for Craveable Brands Pty Ltd

S Lomax for Dasumatr Pty Ltd t/a Red Rooster Orange and Dubbo

A Pardo for Shop, Distributive and Allied Employees Association

Hearing details:

Sydney (via telephone)

2019.

March 19.

Printed by authority of the Commonwealth Government Printer

<AG832495  PR705965>