Shop, Distributive and Allied Employees Association

[2017] FWCA 6645

[2017] FWCA 6645

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Shop, Distributive and Allied Employees Association
(AG2017/2014)

PIZZA HAVEN/SDA AGREEMENT 2005

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 DECEMBER 2017

Application for termination of the Pizza Haven/SDA Agreement 2005.

[1] On 2 June 2017, the Shop, Distributive and Allied Employees Association (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Pizza Haven/SDA Agreement 2005 1(Agreement). The Agreement covers Agador Pty Ltd and the franchisees of PHF Australia Pty Ltd listed in Schedule 3 of the Agreement, the SDA and the employees of Pizza Haven who are employed in the classifications set out in clause 13 of the Agreement. The Agreement has a nominal expiry date of 31 January 2008, which has now passed.

[2] The Agreement is a collective agreement-based transitional instrument to which Items

15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of

Schedule 3 of the Transitional Act is that the termination of agreement provisions found in

Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] Mr Angelo Pardo, National Industrial Officer of the Applicant, provided a statutory declaration outlining the process undertaken by the Applicant. The statutory declaration indicates that between 29 May and 1 June 2017 the Applicant undertook an Australian Securities and Investments Commission (ASIC) search of the employers covered by the Agreement to which reference has been made above at [1] to ascertain details of service. 2 Copies of the relevant ASIC entries were annexed to Mr Pardo’s statutory declaration.3

[6] On 6 June 2017, the Applicant served a copy of the application, statutory declaration and a comparison document between the Agreement and the Fast Food Industry Award (comparison document) by registered post on PHF Australia Pty Limited and Agador Pty Ltd. 4 The statutory declaration attaches a copy of the letters sent marked ‘B’ and ‘C’ respectively.5 On 9 June 2017, the Applicant served a copy of the application, statutory declaration and a comparison document between the Agreement and the Fast Food Industry Award (comparison document) by ordinary post on the franchisees of PHF Australia Pty Limited listed in Schedule 3 of the Agreement.6

[7] On 13 October 2017, my associate sent a letter to all of the employers listed in Schedule 3 at the address provided in the Agreement, PHF Australia Pty Limited and Agador Pty Ltd. The letter, inter alia, indicated that an application had been made by the SDA to terminate the Agreement and that if the employer was covered by the Agreement, they were encouraged to attend a Directions Hearing at 4.00pm on 30 October 2017. The 13 October 2017 correspondence attached a copy of the application, statutory declaration, the comparison document and the Notice of Listing. Each of the letters were sent by registered post.

[8] Mr Pardo, on behalf of the SDA attended the Commission on 24 October 2017. No other party attended.

[9] At the Directions Hearing, I made an order requiring the SDA, the employers and employees to file material in support of or opposition to the termination of the Application. A dedicated case site on the Commission’s public webpage [ created so that all relevant material could be easily accessed by the interested and affected parties.

[10] On 31 October 2017, my associate sent a letter attaching a copy of the order 7 to the same parties to which reference is made in [7] above.

[11] No submissions were received.

[12] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. Each notified party was given ample opportunity to provide their view. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[13] The termination will operate from 12 December 2017.

DEPUTY PRESIDENT

 1   AG839041.

 2 Mr Angelo Pardo’s Statutory Declaration dated 10 August 2017 at [8].

 3   Ibid at Annexure ‘E’ to ‘CW’.

 4 Ibid at [7].

 5   Ibid.

 6 Ibid at [9].

 7   PR597236.

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<Price code A, AG839041  PR598621>