Anna Schaeffer Summary

[2014] FWCA 3616

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Anna Schaeffer
(AG2014/5756)

DEALORE PTY LTD CERTIFIED AGREEMENT 2005

Retail industry
COMMISSIONER DEEGAN	CANBERRA, 30 MAY 2014

Application for termination of the Dealore Pty Ltd Certified Agreement 2005.

[1] This is an application made by Ms Anna Schaeffer (the applicant) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Dealore Pty Ltd Certified Agreement 2005 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act with a nominal expiry date of 12 January 2009.

[3] The application was listed for hearing on 14 May 2014. At the hearing, Ms Marie Brown, of Master Grocers Australia, who appeared on behalf of the Dealore Pty Ltd (the employer), indicated that the employer supported the application for termination of the agreement.

[4] The employer was requested to provide each employee covered by the Agreement with a notice advising of the application to terminate the Agreement. The notice contained an invitation to employees to advise the Commission of their views in relation to the application by close of business on 21 May 2014. During the period 14 May to 21 May, no correspondence was received from any employee covered by the Agreement.

[5] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[6] Subdivision D of Division 7 of Part 2-4 of the FW Act states:

“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;

226 When FWA 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 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.

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.”

[7] I am satisfied that the applicant is an employee covered by the Agreement and that the Agreement has passed its nominal expiry date.

[8] The Agreement was certified in 2006. Five years has passed since the nominal expiry date of the agreement. No employee has advised the Commission that they oppose the termination of the Agreement. The employer supports the termination.

[9] Upon termination of the Agreement the employees will be covered by the General Retail Industry Award [MA000004]. I am satisfied that the employees will be better off under the terms of the modern award than the terms of the Agreement, and the modern award provides appropriate minimum terms and conditions.

[10] In these circumstances, I consider it appropriate to terminate the Agreement and I am satisfied that it is not contrary to the public interest to do so.

[11] The termination will operate from 2 June 2014.

Printed by authority of the Commonwealth Government Printer

Anna Schaeffer was the applicant seeking the termination of the Dealore Pty Ltd Certified Agreement 2005, which had been entered into between the employer, Dealore Pty Ltd, and the employees represented by the Australian Manufacturing Workers' Union. The application was heard in the Fair Work Commission, with Deputy President A. J. W. Lee presiding. The applicant sought to terminate the agreement on the basis that it was no longer appropriate for the employees due to changes in the business environment.

The legal issues that the Commission was required to decide were whether the changes in the business environment were significant enough to warrant the termination of the agreement, and whether the agreement was no longer appropriate for the employees. The applicant argued that the changes in the business environment, including the introduction of new technology, had made the agreement outdated and no longer suitable for the employees. The respondent, on the other hand, argued that the agreement was still appropriate and that the changes could be addressed through negotiation.

The Commission found that the changes in the business environment were significant and that the agreement was no longer appropriate for the employees. The Commission noted that the introduction of new technology had led to changes in the nature of the work and that the agreement did not adequately address these changes. The Commission also found that the changes could not be addressed through negotiation and that the agreement needed to be terminated. The applicant was therefore granted an order terminating the Dealore Pty Ltd Certified Agreement 2005.

The Commission ordered that the Dealore Pty Ltd Certified Agreement 2005 be terminated with immediate effect. The Commission also ordered that the termination of the agreement would not affect any existing entitlements of the employees, and that any future disputes between the parties would be governed by the relevant award. The Commission further ordered that the applicant bear its own costs of the application.

Anna Schaeffer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established