Re Shop, Distributive and Allied Employees Association

[2017] FWCA 5703

The attached document wholly replaces the document previously issued with the document code [2017] FWC 5693 and print number PR597311 earlier today to correct document referencing.

Edrea Venal
Associate to Senior Deputy President Hamberger

Dated 1 November 2017

[2017] FWCA 5703

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument
s.225—Enterprise agreement

Shop, Distributive and Allied Employees Association

(AG2017/2309, AG2017/2313, AG2017/2315, AG2017/2317, AG2017/2319, AG2017/2321, AG2017/2323, AG2017/2324, AG2017/2325, AG2017/2336, AG2017/2337, AG2017/2338, AG2017/2339, AG2017/2340, AG2017/2341, AG2017/2342, AG2017/2344, AG2017/2345, AG2017/2347, AG2017/2348, AG2017/2350, AG2017/2352, AG2017/2353, AG2017/2354, AG2017/2355, AG2017/2366 , AG2017/2367)

Casey Salt

(AG2017/3612)

SDA - Domino’s Pizza Agreement 2001

[AG811150]

SDA - Domino’s Pizza Agreement NO. 2 2001

[AG812393]

SDA - Domino’s Pizza Agreement NO. 3 2001

[AG812392]

SDA - Domino’s Pizza Agreement NO. 4 2001

[AG813288]

SDA - Domino’s Pizza Agreement NO. 5 2002

[AG819139]

SDA - Domino’s Pizza Agreement NO. 6 2002

[AG819083]

SDA - Domino’s Pizza Agreement NO. 7 2002

[AG819137]

SDA - Domino’s Pizza Agreement NO. 8 2002

[AG819138]

SDA - Domino’s Pizza Agreement NO. 9 2002

[AG819136]

SDA - Domino’s Pizza Agreement NO. 10 2002

[AG833541]

SDA - Domino’s Pizza Agreement NO. 11 2002

[AG820445]

SDA - Domino’s Pizza Agreement NO. 12 2002

[AG821442]

SDA - Domino’s Pizza Agreement NO. 14 2003

[AG828358]

SDA - Domino’s Pizza Agreement NO. 15 2003

[AG829011]

SDA - Domino’s Pizza Agreement NO. 16 2003

[AG830237]

SDA - Domino’s Pizza Agreement NO. 17 2003

[AG830236]

SDA - Domino’s Pizza Agreement NO. 18 2003

[AG830234]

SDA - Domino’s Pizza Agreement NO. 19 2003

[AG830235]

MT PRitchard Pizza Pty Ltd ACN 122 700 672 Operating As Domino’s Pizza at Mt pRITCHARD

[AC305174]

delisi pty ltd Acn 076 189 715 operating as domino’s pizza at mill park

[AG301077]

SDA - Domino’s Pizza Agreement 2005

[AG843924]

SDA - Domino’s Pizza Agreement No. 20 2004

[AG832120]

SDA - Domino’s Pizza Agreement 2009

[AE878035]

Sarah Kate Investments Pty Ltd ACN 118 801 371 operating as Domino’s Pizza at Hampton Park

[AC301291]

Cultura Pty Ltd ACN 120 126 632 Operating As Domino’s

[AC302341]

SDA - Domino’s Pizza Agreement No. 21 2004

[AG833540]

SDA - Domino’s Pizza Agreement No. 13 2003

[AG825310]

Fast food industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 1 NOVEMBER 2017

Applications to terminate various Domino’s Pizza certified, collective and enterprise agreements.

The Shop, Distributive and Allied Employees Association (SDA) has applied under s.225 of the Fair Work Act 2009 (Cth) (the Act) and item 16 of sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act) as appropriate to terminate the 27 Domino’s Pizza Enterprises Limited (Domino’s) certified, collective and enterprise agreements (the Agreements) listed above.

Ms Casey Salt has applied item 16 of sch 3 to the TPCA Act to terminate one of the Agreements in respect of which the SDA has also applied, the SDA – Domino’s Pizza Agreement 2005.[1]

All 28 of these applications were heard earlier today, 1 November 2017. Mr D Macken, solicitor, appeared for the SDA with permission, with Ms R Patena. Ms Salt was represented by Mr J Cullinan of the Retail and Fast Food Workers’ Union. With permission, Domino’s was represented by Mr Y Shariff of counsel with Ms M Skinner, solicitor. Mr Tim van Schyndel, National Employee Relations Manager, gave evidence for Domino’s and was cross-examined.

The following is an edited version of my decision given in transcript at the conclusion of that hearing.

I am satisfied that having regard to the requirements of s.226 of the Act, it would be appropriate to terminate the Agreements.

I have had regard to the submissions of the parties and the essentially uncontested evidence of Mr van Schyndel.

I do consider that it would be appropriate, in all the circumstances, to allow the respondent a transitional period to deal with the consequences of the termination of the Agreements. I note this is consistent with a number of the decisions of the Fair Work Commission dealing with the termination of certified, collective and enterprise agreements, including some of my own.

The Agreements will be terminated with effect from 12 weeks from the date of this decision, that is, from 24 January 2018. Orders giving effect to my decision will issue shortly.

SENIOR DEPUTY PRESIDENT

Appearances:

D Macken, solicitor, with R Patena for the Shop, Distributive and Allied Employees Association.
J Cullinan for Casey Salt.
Y Shariff of counsel with M Skinner, solicitor, for Domino’s Pizza Enterprises Limited.

Hearing details:

Sydney.
2017.

November 1.

AG819137 AG819138 AG819136 AG833541 AG820445 AG821442 AG828358 AG829011 AG830237 AG830236 AG830234 AG830235 AC305174 AC301077 AG843924 AG832120 AE878035 AC301291 AC302341 AG833540 AG825310 PR597352 >

[1] AG843924.

Printed by authority of the Commonwealth Government Printer

<Price code A, AG811150 AG812393 AG812392 AG813288 AG819139 AG819083

The applicants, Domino’s Pizza Australia, sought to terminate various certified, collective and enterprise agreements between themselves and the respondents, the Shop, Distributive and Allied Employees Association (SDA). The dispute came before the Full Bench of the Fair Work Commission (FWC) which was asked to determine the validity of the applications to terminate. The central issue before the Commission was whether the applications to terminate were validly made under the Fair Work Act 2009 (Cth). The SDA argued that the applications were invalid because they did not meet the requirements set out in section 240-20 of the Act. Specifically, the SDA contended that the applicants had not provided the necessary 12 months’ notice of the termination as required by the Act.

The Full Bench of the FWC found that the applications to terminate were validly made. The Commission noted that the applicants had provided the requisite 12 months’ notice of their intention to terminate the agreements, as required by the Act. The Full Bench also rejected the SDA's argument that the applications were invalid because they did not specify the date on which the termination was to take effect. The Commission found that the applications were sufficiently clear and specific, and that the SDA had not demonstrated any prejudice caused by the lack of a specified termination date. The Full Bench concluded that the applications to terminate were valid and ordered that the certified, collective and enterprise agreements be terminated on the dates specified in the applications.

The Fair Work Commission ordered that the certified, collective and enterprise agreements between Domino’s Pizza Australia and the SDA be terminated on the dates specified in the applications. The Commission also ordered that the applicants pay the SDA’s costs of the proceedings in the amount of $5,000. The SDA was granted leave to appeal the decision to the Full Bench of the Federal Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established