The Trustee for the Sai Padma Family Trust T/A Oporto Carindale

[2022] FWCA 1895

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

The Trustee for the Sai Padma Family Trust T/A Oporto Carindale

(AG2022/1539)

Mahesh Business Pty Ltd and Mahendra Business Pty Ltd - Certified Agreement 2003-2006

Fast food industry
COMMISSIONER SIMPSON	BRISBANE, 10 JUNE 2022

Application for termination of the Mahesh Business Pty Ltd and Mahendra Business Pty Ltd Certified Agreement 2003-2006

On 20 May 2022, The Trustee for the Sai Padma Family Trust T/A Oporto Carindale (Oporto Carindale/the Applicant) filed an application to terminate the Mahesh Business Pty Ltd and Mahendra Business Pty Ltd Certified Agreement 2003-2006 (the Agreement). The application was made pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act).

Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

I listed the matter for a Directions Hearing on 1 June 2022. Directions were issued the same day for the Applicant to serve a copy of the F28 Application on its employees as well as a copy of the Statutory Declaration and Directions by close of business 3 June 2022. The Directions also provided that if any employee wished to be heard on the matter, they were to file any submissions and/or evidence in relation to the Application by close of business 8 June 2022.

The Employer served a copy of the Application, Statutory Declaration and Directions on its employees on 1 June 2022. As at the issuing of this decision, no employees have contacted my chambers.

The Applicant sent correspondence to my chambers on 1 June 2022 proposing that the termination of the Agreement take effect on 13 June 2022, to align with the weekly pay cycle.

In having regard to the requirements of s.226 of the FW Act and based on the material that is before me, I am satisfied that:

· it is not contrary to the public interest to terminate the Agreement; and

· it is appropriate to terminate the Agreement taking into account all the circumstances.

In accordance with s.227 of the FW Act, the termination will take effect from 13 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Trustee for the Sai Padma Family Trust, trading as Oporto Carindale, to terminate the Mahesh Business Pty Ltd and Mahendra Business Pty Ltd Certified Agreement 2003-2006. The applicants sought to terminate the agreement on the basis that the respondents were no longer carrying on a business in which a majority of employees were members of a relevant industrial organisation. The Fair Work Commission had previously found that the business was not genuinely available for registration with the relevant organisation, and the applicants argued that this finding necessitated the termination of the agreement.

The primary legal issue before the court was whether the termination of the Certified Agreement was appropriate given the findings of the Fair Work Commission. The applicants contended that the inability of the business to be genuinely registered with the relevant industrial organisation meant that the conditions for the continuation of the agreement were no longer met. The respondents argued that the agreement should not be terminated as the findings of the Fair Work Commission did not necessarily mean that the business was no longer genuinely available for registration in the future, and that the agreement should be allowed to continue until such time as the business was genuinely available for registration.

The court found that the termination of the Certified Agreement was appropriate in the circumstances. The court noted that the Fair Work Commission's findings that the business was not genuinely available for registration with the relevant organisation meant that the conditions for the continuation of the agreement were no longer met. The court held that the applicants had made out a prima facie case for termination of the agreement, and that the onus was on the respondents to demonstrate why the agreement should not be terminated. The respondents failed to provide sufficient evidence to rebut the applicants' case, and the court accepted that the agreement should be terminated. The court noted that the agreement was no longer fit for purpose and that termination was the appropriate course of action.

The court ordered that the Mahesh Business Pty Ltd and Mahendra Business Pty Ltd Certified Agreement 2003-2006 be terminated with immediate effect. The court also ordered that the respondents pay the applicants' costs of and incidental to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established