Ms April Schenk

[2019] FWCA 7326

[2019] FWCA 7326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Ms April Schenk
(AG2019/2845)

TRIPLE R PAYROLL SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2008

Fast food industry
COMMISSIONER SIMPSON	BRISBANE, 23 OCTOBER 2019

Application for termination of the Triple R Payroll Services Pty Ltd Employee Collective Agreement 2008.

[1] On 2 August 2019 Ms April Schenk made an application under s.225 of the Fair Work Act 2009 (the Act) for termination of the Triple R Payroll Services Pty Ltd Employee Collective Agreement 2008 (“the Agreement”). The application was accompanied by a Form F24C Statutory Declaration of 1 August 2019 signed by Ms Schenk.

[2] The Agreement covers the Applicant and employees engaged in classifications contained in the Agreement. The nominal expiry date of the agreement was 3 October 2009.

[3] On 3 October 2019 the Applicant gave notice that they were to be represented by the Shop, Distributive and Allied Employees Association (SDA).

[4] A directions hearing was held by telephone on 4 September 2019. The Applicant was represented by Mr Angelo Pardo of the SDA and the Respondent was represented by Mr Brenton Allen of MST Lawyers.

[5] Subsequent to the hearing I issued directions that by 5:00pm Friday 13 September 2019the Respondent is to provide a copy to each of its employees a copy of the Form 24B application for termination of an enterprise agreement made by Ms April Schenk; a copy of the directions and Notice of Listing; and a copy of an information document prepared by the Fair Work Commission. The directions also provided that any employees of the Respondent who wished to express a view concerning whether it is appropriate to terminate the Triple R Payroll Services Pty Ltd Employee Collective Agreement 2008 may do so by emailing my Chambers.

[6] The directions included a listing for a hearing to be conducted on 14 October and 15 October 2019 in Brisbane.

[7] On 26 September 2019 the SDA advised they had reached a consent position with the Respondent for the Agreement to be terminated with effect from 16 December 2019.

[8] Section 226 of the Act provides for when the FWC must approve a termination of an enterprise agreement. The section 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.”

[9] As of the issuing of this decision, only one employee of the Respondent contacted my Chambers advising they opposed termination of the Agreement. I have taken this into consideration.

[10] On the basis of the material before the Commission including the Form F24A Statutory Declaration, the views of the individual employee, and the consent position of the parties, I am satisfied that the statutory tests have been met and the application to terminate the Agreement is approved.

[11] Per s.227 of the Act, the termination operates from 16 December 2019.

COMMISSIONER

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