Venga Pty Ltd T/A San Churro

[2022] FWCA 1834

[2022] FWCA 1834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Venga Pty Ltd T/A San Churro

(AG2022/1566)

Chocolateria San Churro Enterprise Agreement 2015

Restaurants
COMMISSIONER CIRKOVIC	MELBOURNE, 6 JUNE 2022

Application for termination of the Chocolateria San Churro Enterprise Agreement 2015

1. Venga Pty Ltd T/A San Churro (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Chocolateria San Churro Enterprise Agreement 2015 (the Agreement). The Agreement has passed its nominal expiry date of 30 September 2019 and the Applicant is the employer covered by the Agreement.

1. Section 225 of the Act provides as follows:

“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.”

1. Section 226 of the Act provides as follows:

“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.”

1. The Applicant filed Form F24C declaration dated 15 May 2022. I note that no bargaining representatives were appointed during the approval process for the agreement subject to termination.

1. On 25 May 2022, my Chambers sent notice to all 25 employees still covered by the agreement, seeking their views on the termination application and providing them until 4:00PM on 2 June 2022 to respond to the application. The employees did not provide any submissions in relation to the termination.

1. Materials provided to the Commission and the Form F24C declaration by the employer indicated that “employees are not disadvantaged by the termination of the agreement and both parties are better off and benefit from this change.” The employer confirmed in the F24C that upon termination, employees would be covered by the Restaurant Industry Award 2020 (the Award).

1. Based on the material contained in the declaration of Ms Jacqueline Loveridge 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 s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

1. The termination is effective from today.

COMMISSIONER

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