Shop, Distributive and Allied Employees Association

[2019] FWCA 523

[2019] FWCA 523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Shop, Distributive and Allied Employees Association
(AG2017/2561 and others)

PIZZA HUT - SDA NATIONAL EMPLOYEE RELATIONS AGREEMENT 2009

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 31 JANUARY 2019

Application for termination of multiple enterprise agreements relating to Pizza Hut – consent reached between parties as to date of termination – orders made.

[1] This decision relates to 27 separate s 225 applications filed between 30 June 2017 and 11 August 2017 by the Shop, Distributive and Allied Employees Association (the ‘applicant’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seek the termination of thefollowing agreements:

1. Pizza Hut Queensland – SDA Employee Relations Agreement 2014
2. Pizza Hut Australia Employee Relations Agreement 1994
3. Pizza Hut - SDA National Employee Relations Agreement 2010
4. Pizza Hut - SDA National Employee Relations Agreement 2009
5. Pizza Hut – SDA National Employee Relations Agreement No. 2 2005
6. Title Investments Pty Ltd Certified Agreement 2005
7. SDA - Pizza Hut Visat International Pty Ltd Agreement 2012
8. SDA Pizza Hut Tamanna Family Trust Agreement 2012
9. SDA Pizza Hut APH Bros Pty Ltd Agreement 2012
10. SDA Pizza Hut Gills Unlimited Pty Ltd Agreement 2012
11. Pizza Hut – SDA South Australia Employee Relations Agreement 2001
12. Pizza Hut – SDA South Australia Employee Relations Agreement 2006(AG2006/2347)
13. Pizza Hut – SDA South Australia Employee Relations Agreement 2006 (AG846475-2)
14. Pizza Hut – SDA South Australia Employee Relations Agreement 2012
15. SDA Pizza Hut Leon Lam Family Trust Pty Ltd Agreement 2012
16. Lopwin Pty Ltd Certified Agreement 2005
17. LMJ Services Pty Ltd Certified Agreement 2004 AG837088
18. Pizza Hut – Moreemakk Pty Limited ATF Provest Family Trust ABN 83 531 753 177 Employee Relations Agreement 2007
19. Pizza Hut - SDA Cessnock Employee Relations Agreement 2006
20. Genesis (WA) Pizza Team Members' Agreement (2006)
21. Pizza Hut - SDA National Employee Relations Agreement 1997
22. Pizza Hut - SDA National Employee Relations Agreement No. 3 2006
23. Pizza Hut Victoria [Four J’s] Agreement 2004
24. Pizza Hut Victoria Employment Agreement 2004
25. Diab Pty Limited Certified Agreement 1999
26. Pizza Hut Victoria [911 Enterprises] Agreement 2004
27. Pizza Hut - SDA National Employee Relations Agreement 2004
28. Lopwin Pty Ltd Employee Collective Agreement 2008
29. Pizza Hut - SDA National Employee Relations Agreement 2001
30. Pizza Hut Victoria (Tarrenlea Ridge) Agreement 2004

[2] The applications seek to have the employment conditions of the relevant employees governed instead by the Fast Food Industry Award 2010 (the ‘Award’). The agreements cover (or have previously covered) employees in Pizza Hut franchises across Australia. Relevantly, all Agreements have now passed their nominal expiry dates.

[3] Although the termination applications were lodged in 2017, the parties agreed to stay the applications pending the outcome of negotiations for a replacement agreement. Unfortunately, those negotiations faced a number of hurdles and difficulties in late 2018, which I need not detail here. On 21 December 2018, at the request of the applicant, I listed the matter for mention and subsequently issued directions in respect to the filing and service of evidence. I also listed the matter for hearing on 28 December 2018. Later that day, the parties reached a consent position in relation to the termination applications. By consent, the following directions were issued:

1. Pizza Pan Group Pty Ltd t/a Pizza Hut is directed to make a copy of the order available to all employees by 5pm on 7 January 2019.

2. Employees who seek to oppose the application are directed to advise the Commission that they oppose the application by noon on 11 January 2019.

3. Any party wishing to make submissions in respect to this application, is to file in the Commission and serve on the other parties, an outline of submissions, witness statements (if any), and any other documentary evidence in support of their positions by no later than 5pm on 14 January 2019.

4. If no objection is received in chambers by the by the above times indicated, the Agreements will be terminated on 31 January 2019.

To date, no employee, or any other party has sought to oppose the termination applications being granted by the Commission.

[4] The relevant provisions of the Act governing applications of this kind, are set out as follows:

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 employees 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 is:

(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.

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.

[5] Having considered the applications, the accompanying statutory declaration, the views of the parties and the terms of the Agreements themselves, I am satisfied that all of the requirements of the Act, in particular, ss 225 and 226 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreements. I have taken into account the views of the employees and the employer as well as the likely effect on both, which appears overwhelmingly positive. Accordingly, pursuant to s 227 of the Act, the Agreements listed at [1] above are terminated effective today, 31 January 2019.

DEPUTY PRESIDENT

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