Sun Smile Pty Ltd T/A Zarraffa's Coffee Toowong

Case •

[2018] FWCA 7837

•

21 DECEMBER 2018
[2018] FWCA 7837

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

Sun Smile Pty Ltd T/A Zarraffa's Coffee Toowong

(AG2018/6199)

SUN SMILE PTY LTD COLLECTIVE AGREEMENT 2009

Restaurants

DEPUTY PRESIDENT ASBURY

BRISBANE, 21 DECEMBER 2018

Application for termination of the Sun Smile Pty Ltd Collective Agreement 2009.

  1. On 7 November 2018, Sun Smile Pty Ltd T/A Zarraffa's Coffee Toowong (the Applicant) made an application to terminate the Sun Smile Pty Ltd 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). The Applicant seeks to terminate the Agreement and revert to the Restaurant Industry Award 2010. 

  1. 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.

  1. I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. In particular I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Restaurant Industry Award 2010. I have also had regard to the fact that the Agreement terms are less favourable than those in the Award and that if the Agreement is terminated the Award will apply, to the benefit of employees.

  1. The termination will come into effect from the date of this decision.


DEPUTY PRESIDENT

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<AC324390  PR703482>

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