Oneram Pty Ltd T/A Guzman y Gomez Wollongong Guzman Y Gomez Shellharbour

[2024] FWCA 4217

[2024] FWCA 4217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Oneram Pty Ltd T/A Guzman y Gomez Wollongong Guzman Y Gomez Shellharbour

(AG2024/4519)

ONERAM PTY LTD ENTERPRISE AGREEMENT 2014-2018 

Restaurants
COMMISSIONER SLOAN	SYDNEY, 29 NOVEMBER 2024

Application for termination of the Oneram Pty Ltd Enterprise Agreement 2014 - 2018

1. Oneram Pty Ltd (“Oneram”) has applied to terminate the Oneram Pty Ltd Enterprise Agreement 2014-2018 (“Agreement”). The application is made under to s 225 of the Fair Work Act 2009 (“Act”). 

1. The application is supported by a declaration made by Paul O’Neill, who is described in the documents before me as a “Franchise Owner”. The pertinent terms of the declaration are as follows: 

a.Oneram trades as Guzman y Gomez Wollongong and Guzman y Gomez Shellharbour. 

b.The nominal expiry date of the Agreement was 1 January 2018. 

c.The terms of the Agreement are inferior to those of the Fast Food Industry Award 2020 (“Award”). 

d.Oneram has some employees engaged under the Agreement and others under the Award. Those under the Agreement are not entitled to the same benefits as those under the Award.

e.Oneram has sought the views of employees covered by the Agreement as to whether they support termination of the Agreement. Oneram informed the employees of its intention to apply to the Commission to terminate the Agreement, and of its reasons for doing so. Oneram provided the employees with information as to the more beneficial terms of the Award that would apply to their employment on termination of the Agreement. 

f.Oneram conducted a vote of the relevant employees. Of the 126 employees covered by the Agreement, 85 cast a vote. Of those, 83 voted in favour of terminating the Agreement and 2 opposed it. 

1. The Agreement has passed its nominal expiry date and Oneram is an employer covered by the Agreement. It follows that Oneram has standing to apply for termination of the Agreement: s 225(a) of the Act.

1. The Commission must terminate the Agreement if, amongst other things, it is satisfied that the continued operation of the agreement would be unfair for the employees covered by it: s 226(1)(a). However, the Commission must still be satisfied that it is appropriate in all of the circumstances to terminate the Agreement: s 226(1A). In making its decision, the Commission may have regard to any relevant matter: s 226(5). 

1. I am satisfied that the continued operation of the Agreement would be unfair for the employees covered by it, to the extent that it might preclude them from receiving the more beneficial terms in the Award. I am otherwise satisfied that it is appropriate in all the circumstances to terminate the Agreement. The apparent majority support of the employees for termination of the Agreement is a relevant consideration. 

1. I order that the Agreement be terminated with effect on 29 November 2024.

COMMISSIONER

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