Nicholas Armbrister

[2016] FWCA 2581

[2016] FWCA 2581

The attached document replaces the document previously issued with the above code on 22 April 2016.

The title of the collective agreement-based transitional instrument to be terminated has been added to the header.

Edrea Tio

Associate to Senior Deputy President Hamberger

Dated 26 April 2016

[2016] FWCA 2581

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Nicholas Armbrister
(AG2016/324)

T.G.I.FRIDAY’S ECA 2007 TO 2012

Hospitality industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 22 APRIL 2016

Termination of the T.G.I.Friday’s ECA 2007 to 2012.

[1] On 17 February 2016, Mr Nicholas Armbrister applied under item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act) to terminate the T.G.I.Friday’s ECA 2007 to 2012 1(the Agreement).

[2] The matter was heard today, 22 April 2016. Mr Armbrister represented himself. Mr Millar of counsel appeared for the employer party to the Agreement, TGI Fridays Asia Pacific Pty Ltd (TGI Fridays). Mr Amaresh Devanesen, Director of Operations, gave evidence for TGI Fridays and was cross-examined.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] This matter concerns an application to terminate the Agreement by an employee, Mr Armbrister, who is covered by the Agreement. The Agreement passed its nominal expiry date more than three years ago.

[5] I am satisfied that the applicant has standing to make the application.

[6] It is clear that the Agreement contains terms and conditions of employment that are significantly below those in the Modern Award – the Restaurant Industry Award 2010 2 – that would apply to the employees in the absence of an enterprise agreement.

[7] I note that TGI Fridays does not oppose the application to terminate the Agreement.

[8] I am satisfied that it would not be contrary to the public interest to terminate the Agreement.

[9] I am also satisfied that it is appropriate to terminate the Agreement taking into account all the circumstances including those contained in s.226(b) of the Fair Work Act 2009 (Cth) (the Act).

[10] The main issue in contention is the appropriate operative date of the termination of the Agreement.

[11] TGI Fridays has given evidence of the time it would take to make the changes it would need to make to accommodate a move to the Modern Award, including changes to its electronic database and working arrangements.

[12] TGI Fridays has also given evidence of its intention to make a new enterprise agreement with its employees. I consider it would be appropriate to set a prospective operative date for the termination to give TGI Fridays and its employees an opportunity to make a new enterprise agreement under the Act, without the need to apply the Modern Award for what might end up being only a very short interim period.

[13] In the circumstances, I consider that a period of around three months should be sufficient to finalise a new enterprise agreement and have it approved by the Fair Work Commission.

[14] I therefore order that the Agreement be terminated with effect from 29 July 2016.

SENIOR DEPUTY PRESIDENT

Appearances:

N Armbrister in person.

R Millar of counsel for TGI Friday's Asia Pacific Pty Ltd.

Hearing details:

Sydney.

2016.

April 22.

 1 AC310711 / CAEN073755349.

 2   MA000119.

Printed by authority of the Commonwealth Government Printer

<Price code A, AC310711  PR579408>