Woodmind Pty Ltd

[2015] FWCA 8883

[2015] FWCA 8883

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

Woodmind Pty Ltd
(AG2015/6788)

WOODMIND PTY LTD EMPLOYEE COLLECTIVE AGREEMENT

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 23 DECEMBER 2015

Application for termination of the Woodmind Pty Ltd Employee Collective Agreement.

[1] This is an application filed by Woodmind Pty Ltd (the ‘applicant’), pursuant to Item 16, Sch 3 of the Fair Work Transitional and Consequential Amendments Act 2009 (‘the Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Woodmind Pty Ltd Employee Collective Agreement [AC325678] (the ‘Agreement’). Relevantly, the Agreement passed its nominal expiry date on 10 August 2014.

[2] In a statutory declaration accompanying the application, Mr G Stonestreet, one of two Directors of the applicant explained that the applicant had completed a sale of the business to J.A Smedley Pty Ltd (‘JAS’) on 18 November 2015. Mr Stonestreet understood that JAS had offered employment to all employees of the applicant in accordance with terms and conditions set by the relevant Modern Award. All outstanding entitlements were paid to staff prior to the completion of the sale. The applicant was not carrying on any other business. Mr Stonestreet was not aware of whether any of the applicant’s former employees were members of an employee organisation.

[3] The effect of Sch 3, Item 16 of the Transitional Act and s 226 of the Act is that the Commission must terminate a collective agreement-based transitional instrument on application, subject to the following requirements:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[4] While I observe that on the basis of the statutory declaration of Mr Stonestreet that it appears that there has been a ‘transfer of business’ within the meaning of s 311 of the Act, the Agreement, being a ‘workplace agreement’ is not a ‘transferable instrument’; See: Item 8, Sch 11 of the Transitional Act and s 312(1) of the Act. Accordingly, the Agreement would not apply to the employment of the employees who have now transferred to JAS. In those circumstances, it is not necessary for me to consider the views of the employees. In any event, I accept that the employees’ employment conditions will now be regulated by the Modern Award.

[5] Having reviewed the application and the accompanying declaration of Mr Stonestreet, I am satisfied that all of the requirements of the Act, in particular ss 225 and 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Woodmind Pty Ltd Employee Collective Agreement is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 23 December 2015.

DEPUTY PRESIDENT

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<Price code A, AC325678  PR575373>