Open Door Pub Co Pty Limited

[2011] FWA 3327

[2011] FWA 3327

FAIR WORK AUSTRALIA

DECISION

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

Open Door Pub Co Pty Limited
(AG2011/9609)

Hospitality industry
SENIOR DEPUTY PRESIDENT KAUFMAN	MELBOURNE, 27 MAY 2011

Application to terminate Open Door Pub Co Pty Ltd Employee Collective Agreement 2007.

[1] Open Door Pub Co Pty Limited has made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Open Door Pub Co Pty Ltd Employee Collective Agreement 2007 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as defined by Item 2(5)(c) of the Transitional Act.

[3] The nominal expiry date for the Agreement is 7 February 2011.

[4] Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) sets out the requirements involved in terminating agreements after the nominal expiry date.

[5] The relevant provisions are provided below:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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 FWA 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.

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[6] The nominal expiry date has passed and the application has been made by the employer covered by the agreement. The requirements of s 225 have been met.

[7] There is no material which gives rise to any concern that terminating the Agreement could be contrary to the public interest.

[8] The statutory declaration attached to the application provides some information with respect to the views of the employees covered by the Agreement. All employees were notified of the company’s intention to apply for Fair Work Australia to terminate the Agreement, and that the company would seek the views of the employees by way of conducting a ballot before doing so. The employees were informed of the voting process and access to the Agreement and the relevant award was made available. The results of the ballot indicate that an overwhelming majority of employees support the Agreement being terminated. In these circumstances, I consider it appropriate to terminate the Agreement.

[9] Accordingly, I am required by s.226 of the Act to terminate the Agreement. The termination is to take effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

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