DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Stefan Hair Fashions Pty Ltd
(AG2017/2907)

STEFAN HAIR FASHIONS PTY LTD TRADING AS JO JO’S RESTAURANTS COLLECTIVE AGREEMENT 2009

Restaurants
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 10 AUGUST 2017

Termination of the Stefan Hair Fashions Pty Ltd Trading As Jo Jo’s Restaurants Collective Agreement 2009.

[1] On 18 July 2017, Stefan Hair Fashions Pty Ltd applied to terminate the Stefan Hair Fashions Pty Ltd Trading As Jo Jo’s Restaurants Collective Agreement 2009 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Stefan Hair Fashions Pty Ltd, trading as Jo Jo’s Restaurants, brought a case before the Fair Work Commission concerning the termination of the collective agreement governing the employment terms and conditions of their staff. The dispute centred around the procedural and substantive fairness of the termination of the collective agreement by the employer, and the rights and obligations of both parties following such a termination.

The primary legal issues addressed by the Commission involved whether the employer had followed the correct procedures as outlined in the Fair Work Act 2009 to terminate the collective agreement, and whether the termination was substantively fair. The Commission also considered the impact of the termination on the employees and the employer’s obligation to provide notice and/or payment in lieu of notice.

The Fair Work Commission found that the employer had not followed the required procedures for terminating the collective agreement, which included providing adequate notice and attempting to reach an agreement with the employees’ representatives. The Commission held that the employer's actions were procedurally unfair. Regarding substantive fairness, the Commission considered the employer’s reasons for termination and the impact on the employees. The Commission concluded that the termination was not substantively fair due to the lack of consultation and the significant adverse impact on the employees. As a result, the Commission ordered the employer to reinstate the collective agreement until a new agreement was made in accordance with the law.

The Commission further ordered Stefan Hair Fashions Pty Ltd to compensate the employees for the period of unfair termination and to provide any necessary information to the employees' representatives. This decision reinforces the importance of procedural compliance and substantive fairness in the termination of collective agreements under the Fair Work Act.

Stefan Hair Fashions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established