Ms Emma Bonanno

[2017] FWCA 1754

[2017] FWCA 1754

FAIR WORK COMMISSION

DECISION

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

Ms Emma Bonanno
(AG2016/5716)

PENRITH HOGS PTY LTD ENTERPRISE AGREEMENT 2012

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 6 APRIL 2017

Application for termination of the Penrith Hogs Pty Ltd Enterprise Agreement 2012.

[1] This is an application, filed on 14 September 2016, by Ms Emma Bonanno (the ‘applicant’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Penrith Hogs Pty Ltd Enterprise Agreement 2012 (the ‘Agreement’). The applicant is employed as a part time waitress (her characterisation) and her employment is covered by the Agreement. The Agreement covers employees at a restaurant whose proprietor is Ms E Smallacombe in Penrith, New South Wales. Relevantly, the Agreement passed its nominal expiry date on 1 July 2013. The application seeks to have the employment conditions of the relevant employees covered by the Restaurant Industry Award 2010 [MA000119] (the ‘Award’).

[2] The relevant provisions of the Act governing applications of this kind, are set out 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 employees 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 is:

(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.

[3] In a statutory declaration accompanying the application (Form F24C), Ms Bonannoput that the terms and conditions of the Award were more favourable than those under the expired collective agreement. Terminating the Agreement would not be contrary to the public interest and would be consistent with the preference of the relevant employees. Ms Bonanno explained that the Union had been trying to renegotiate a new enterprise agreement, but those attempts were resisted by the employer. Ms Bonanno believed that terminating the Agreement would encourage productive negotiations.

[4] In a hearing of the application on 24 March 2017, Mr C Acev of United Voice – Liquor and Hospitality Division, appeared for the applicant. Mr Acev submitted that all of the applicable statutory requirements for the termination of an expired agreement had been met and that the Agreement should be terminated. At the hearing, Mr C Agnew, Solicitor appeared with Ms Smallacombe for the respondent employer. Mr Agnew indicated that the employer did not oppose the application being granted by the Commission. (I note that the employer’s position had been recorded in a Statement of the Commission, as presently constituted ; see: [2016] FWC 7234, following earlier proceedings in respect to this application on 7 October 2016).

[5] Having considered the application, the accompanying statutory declaration, the views of the parties and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Given that the affected employees will be better off under the Award rather than the Agreement, I am comfortably satisfied that they would have no opposition to the termination of the agreement. Accordingly, the Penrith Hogs Pty Ltd Enterprise Agreement 2012 is terminated. Pursuant to s 227 of the Act and the request of the applicant, the termination is to take effect on and from 7 April 2017.

DEPUTY PRESIDENT

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