Shop, Distributive and Allied Employees Association Summary

[2017] FWC 5693

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.

AG811150 AG812393 AG812392 AG813288 AG819139 AG819083 AG819137 AG819138 AG819136 AG833541 AG820445 AG821442 AG828358 AG829011 AG830237 AG830236 AG830234 AG830235 AC305174 AG301077 AG843924 AG832120 AE878035 AC301291 AC302341 AG833540 AG825310

[1] AG843924.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission has considered applications for the termination of 27 certified, collective and enterprise agreements between Domino’s Pizza Enterprises Limited (Domino’s) and the Shop, Distributive and Allied Employees Association (SDA). The SDA applied to terminate the agreements under section 225 of the Fair Work Act 2009 (Cth) and Ms Casey Salt applied to terminate one agreement under item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The Commission heard submissions from the SDA, Ms Salt, and Domino’s on 1 November 2017. The Commission found that the requirements of section 226 of the Fair Work Act were satisfied and it was appropriate to terminate the agreements, with a transitional period of 12 weeks for Domino’s to deal with the consequences of the termination. The agreements will be terminated from 24 January 2018.
The key issue before the Commission was whether the requirements of section 226 of the Fair Work Act were satisfied to justify the termination of the agreements. Section 226(1) requires the Commission to consider whether the agreement is, or has become, obsolete or ineffective or whether there are other reasons why the agreement should be terminated. The SDA argued that the agreements were obsolete as they were based on a model enterprise agreement and did not address current workplace issues. Domino’s argued that the agreements were still effective and should remain in place. The Commission found that the agreements were obsolete as they did not reflect current workplace issues and practices. The Commission also found that it would be appropriate to allow a transitional period for Domino’s to deal with the consequences of the termination.
The Fair Work Commission held that the agreements were obsolete and should be terminated as they did not reflect current workplace issues and practices. The Commission found that it would be appropriate to allow a transitional period of 12 weeks for Domino’s to deal with the consequences of the termination. The Commission ordered that the agreements be terminated from 24 January 2018. The Commission also ordered that orders giving effect to its decision would issue shortly.

Shop, Distributive and Allied Employees Association

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