MJ & RA Clarke Pty Ltd T/A Bakers Delight Strath Village

[2017] FWCA 3547

[2017] FWCA 3547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

MJ & RA Clarke Pty Ltd T/A Bakers Delight Strath Village
(AG2017/2262)

M.J. & R.A CLARKE PTY LTD ENTERPRISE AGREEMENT 2009

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 4 JULY 2017

Application for termination of the M.J. & R.A. Clarke Pty Ltd Enterprise Agreement 2009.

[1] On 15 June 2017, MJ & RA Clarke Pty Ltd T/A Bakers Delight Strath Village (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) for the termination of the M.J & R.A Clarke Pty Ltd Enterprise Agreement 2009 (Agreement).

[2] The Agreement came into operation on 22 June 2010 with a nominal expiry date of 21 June 2014.

[3] The Applicant filed a statutory declaration of Mr Michael Clarke, of the Applicant, declared 13 June 2017 (Statutory Declaration).

Legislation

[4] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 is 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.”

[5] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is 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.”

[6] On 20 June 2017, I caused correspondence to be sent to the Mr Clarke requesting that he provide the contact details of the employees covered by the Agreement (the employees). On 20 June 2017, Mr Clarke provided a list of the employees and their contact details.

[7] On 23 June 2017, I caused directions to be sent to the employees and Mr Clarke, attaching a copy of the application and statutory declaration made by Mr Clarke. The directions provided that if any party opposed the application, advice was to be given to my chambers by close of business, 30 June 2017.

[8] The correspondence failed to send to two of the employees on the email addresses that had been provided. Subsequently, correspondence was sent to the Mr Clarke requiring him to provide a copy of the directions, application and statutory declaration to the two employees. On 23 June 2017, the correspondence was also sent via express post to the two employees.

[9] On review of the Australia Post tracking numbers, it appears the correspondence of 23 June 2017 was delivered to the two employees on 26 June 2017.

[10] There was no material filed by any employee.

Consideration

Standing

[11] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[12] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that the Agreement has passed the nominal expiry date.

[13] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the 2009 Agreement pursuant to s.226(a) of the Act, on the basis of the material before the Commission.

Views, Circumstances and Likely Effect of Termination

[14] The Applicant is the employer covered by the Agreement. Mr Clarke declares in his Statutory Declaration that he has entered into a Contract of Sale in relation to the business and that the transfer of ownership will take place on 5 July 2017. Mr Clarke further declares that the new franchisee will be offering any transferring employees contracts of employment pursuant to the terms and conditions of the General Retail Industry Award 2010 and that this would mean they would be paid more. Mr Clarke seeks that the termination takes effect from ‘not before 7.30pm on 5 July 2017’.

[15] I note that there is no employee organisation covered by the Agreement and have taken this into account.

[16] As outlined above at paragraphs [7]-[9], I am satisfied the employees were on notice as to the application before me and had a reasonable period of time to file material should they have wished to do so. In the directions of 23 June 2017, I outlined that if no objection was to be received by my chambers by close of business 30 June 2017 that I would consider determining the application based on the material filed.

[17] There is no material before me to indicate what rates are currently being paid to employees covered by the Agreement but I am satisfied I can reasonably conclude, based on a reading of its terms, that if the Award was to apply to the employees, they would not be left with conditions less favourable than those they currently enjoy. In any event, the Act contemplates the Award and NES applying as the safety net, in the event of the termination of the Agreement.

[18] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[19] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[20] An Order 1 will be issued terminating the Agreement with effect from 6 July 2017.

COMMISSIONER

 1   PR594277.

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