White China Pty Ltd T/A Restaurant Soy

[2016] FWC 8699

[2016] FWC 8699

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

White China Pty Ltd T/A Restaurant Soy
(AG2016/5969)

RESTAURANT SOY COLLECTIVE AGREEMENT 2009

Restaurants
COMMISSIONER CIRKOVIC	MELBOURNE, 2 DECEMBER 2016

Application for termination of the Restaurant Soy Collective Agreement 2009.

[1] An application has been made by White China Pty Ltd T/A Restaurant Soy (Applicant) pursuant to Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TCPA Act) to terminate the Restaurant Soy Collective Agreement 2009 (Agreement). The nominal expiry date of the Agreement was 27 July 2012.

Legislation

[2] The relevant provision of the TCPA Act is as follows:

“Schedule 3…
…
15 Collective agreement-based transitional instruments: termination by agreement

Subdivision c of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) 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.”

[3] The relevant provisions of the Fair Work Act 2009 (Act) are as follows:

“222 Application for the FWC's approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] Mr Daniel Wong, Director of the Applicant, provided evidence attesting to the vote in favour of the Agreement being terminated. Of 20 employees, 13 voted, with 10 voting to terminate the Agreement.

[5] I am satisfied that the requirements of s.226 of the Act for the termination of an enterprise agreement after its nominal expiry date have been met.

[6] The termination of the Agreement is approved with effect from 2 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AC324064  PR588190>