Shop, Distributive and Allied Employees Association

[2013] FWC 6977

[2013] FWC 6977

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 5 - Application to terminate an enterprise instrument

Shop, Distributive and Allied Employees Association
(EM2013/25)

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 16 SEPTEMBER 2013

Award modernisation - termination of the SDA/Pizza Hut (South Australia) Award 2002.

[1] This is an application, pursuant to Sch 6, Item 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’) to terminate the SDA/Pizza Hut (South Australia) Award 2002 [AP814341] (the ‘Enterprise Instrument’) filed by the Shop, Distributive and Allied Employees’ Association (the ‘Union’). The Enterprise Instrument covers employees of Spencer Gulf Enterprises (SA) Pty Ltd (the ‘Company’) who are members of the Union and would otherwise be covered by the Fast Food Industry Award 2010 [MA000003].

[2] Sch 5, Item 6 of the Transitional Act is as follows:

‘5 Enterprise instruments: termination by FWA

(1) A person covered by an enterprise instrument may apply to FWA for FWA to terminate the instrument.

(2) The application may be made only during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

(3) If an application for FWA to terminate the enterprise instrument is made under subitem (1), FWA may:

(a) terminate the enterprise instrument; or

(b) decide that the enterprise instrument should not be terminated; or

(c) decide to treat the application as if it were an application under item 4.

(4) In making a decision under subitem (3), FWA must take into account the following:

(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;

(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;

(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;

(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to terminate, or not terminate, the enterprise instrument, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

(g) the views of the persons covered by the enterprise instrument;

(h) any other matter prescribed by the regulations.

(5) If FWA terminates the enterprise instrument, the termination operates from the day specified in the decision to terminate the instrument, being a day that is not earlier than the FW (safety net provisions) commencement day.’

[3] In the Form F1 application filed by the applicant, Mr J de Bruyn set out the grounds for the application as follows:

1. The SDA/Pizza Hut (South Australia) Award 2002 is an enterprise instrument for the purposes of Item 5, Schedule 6 of the Transitional Act.

2. The Company and the Union have agreed it is appropriate to terminate this instrument.

3. The Fast Food Industry Award 2010 is now in place for the Company.

4. The Fast Food Industry Award 2010 was established by the Australian Industrial Relations Commission as part of the Award Modernisation process which harmonised and standardised the terms and conditions that applied in the retail and wholesale industry.

5. A current enterprise agreement, which expires 31 January 2015, is in place.

[4] At a hearing of the application on 4 September 2013, Ms S Burnley appeared for the Union and Ms A Peace appeared for the Company. Ms Burnley set out the history of the Enterprise Instrument from 1994 onwards, which has been the subject of litigation between the Company and the Union in recent years. Ms Peace indicated that the Company consented to the termination of the Agreement and noted that South Australia was the only State in which Pizza Hut has its own Award.

[5] Having considered the Union’s application and the submissions of the parties, I have decided to grant the orders sought by the Union. In doing so, I have taken into account all the statutory requirements under sub-clause (4) of Item 5 of Sch 6 of the Transitional Act. Pursuant to sub-clause (5), the termination will take effect from 4 September 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AP814341  PR541791 >