Pyramid Foods Pty Ltd T/A Hungry Jacks

[2022] FWCA 1517

[2022] FWCA 1517

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Pyramid Foods Pty Ltd T/A Hungry Jacks

(AG2022/1167)

Pyramid Foods Pty Limited Certified Agreement

Fast food industry
DEPUTY PRESIDENT CROSS	SYDNEY, 5 MAY 2022

Application for termination of the Pyramid Foods Pty Limited Certified Agreement

1. An application has been made pursuant to Schedule 3, Item 16 of the Fair Work Act (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the FW TPCA Act) by Pyramid Foods Pty Ltd T/A Hungry Jacks (the Applicant) for approval to terminate the Pyramid Foods Pty Limited Certified Agreement (the Agreement). The nominal expiry date of the Agreement is 16 May 2006.

1. Schedule 3 Item 16 of the FW TPCA Act provides:

“16 Collective agreement‑based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

1. Submission D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) includes ss 225 and 226 of the Act. Those sections provide:

“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 employers 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 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.”

Consideration

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 16 May 2006.

1. The Agreement does not cover any employee organisations.

1. The Applicant wrote to the employees covered by the Agreement on 28 April 2022, advising that any employee covered by the Agreement who wished to make submissions in relation to the Application was to provide their submissions to my Chambers via email by 4:00pm on 4 May 2022. No such submissions have been received.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that it is not contrary to the public interest to terminate the Agreement.

2. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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