V Jonas No2 Pty Ltd T/A Caffe Primo Salisbury

[2017] FWC 6790

[2017] FWC 6790

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

V Jonas No2 Pty Ltd T/A Caffe Primo Salisbury

(AG2017/5661)

Caffe Primo Salisbury Enterprise Agreement 2012

Restaurants
Commissioner Platt	ADELAIDE, 18 DECEMBER 2017

Application for termination of the Caffe Primo Salisbury Enterprise Agreement 2012.

1. On 20 November 2017, V Jonas No2 Pty Ltd T/A Caffe Primo Salisbury (the Employer) filed an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Caffe Primo Salisbury Enterprise Agreement 2012 (the Agreement).

1. The application included a Statutory Declaration of Victoria Jonas which indicated that prior to the ballot for the termination of the Agreement employees had been advised of the consequences of the termination of the Agreement and applicable Award rates of pay.  Twelve of the 17 employees covered by the Agreement supported the termination of the Agreement in a secret ballot conducted on 19 November 2017.

1. Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

1. Directions were issued on 1 December 2017, directing the Employer as follows:

“[3]       The Fair Work Commission directs V Jonas No2 Pty Ltd T/A Caffe Primo Salisbury to provide the correct Form F24A Statutory Declaration provided to the Fair Work Commission together with the application and these directions, to all employees whose terms of employment are covered by the Agreement, prior to 4.00pm 8 December 2017.”

1. Confirmation of compliance with this direction was provided on 11 December 2017.

1. The directions further advised:

“[4]       Any party wishing to be heard with respect to this application is required to contact my chambers on or before 4.00pm 15 December 2017. In the event of such contact being made, the application will be listed for hearing shortly after that date. In the absence of any contact being made, I will determine the application on the material before me.”

1. No person sought to be heard on the application.

1. Based on the material that is before me, including the Statutory Declaration of Victoria Jonas of the Employer, I am satisfied that the requirements of s.223 of the Act have been met.

1. In accordance with s.224 of the Act, the termination will come into effect on the date of this decision.

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