Application by Employee X

[2020] FWC 5786

[2020] FWC 5786

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

Application by Employee X
(AG2020/2297)

Wholesale and retail trade industry
COMMISSIONER BISSETT	MELBOURNE, 5 NOVEMBER 2020

Application for termination of the QBD The Bookshop Employee Collective Agreement 2007.

[1] On 5 August 2020 the Commission received an application from “Employee X” to terminate the QBD The Bookshop Employee Collective Agreement 2007(Agreement) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act). The application was made on behalf of Employee X by the Shop, Distributive and Allied Employees’ Association (“SDA”).

[2] Item 16, Schedule 3 of the FW (TPCA) Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[3] The FW Act relevantly 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.

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.

The Application

[4] The Agreement was made under the Workplace Relations Act 1996 (WR Act). It has a nominal expiry date of two years from the date on which the Agreement was lodged with the Office of the Employment Advocate (Clause 3.1). The Agreement was apparently lodged in 2007. Its nominal expiry date was therefore in 2009. I am satisfied that the Agreement has passed its nominal expiry date.

[5] The application for termination of the Agreement lists two employers covered by the Agreement - Cover Syndicate Pty Ltd T/A QBD Books (QBD Books) and Last Edition Pty Ltd. A copy of the application was served on both named employers. The Liquidator for Last Edition Pty Ltd indicated that it was soon to be deregistered and did not intend to participate in proceedings in relation to the application before the Commission.

[6] Employee X is employed by QBD Books and is therefore entitled to make the application.

The Agreement

[7] As mentioned above the Agreement was made and commenced operation in 2007 when it was lodged with the (then) Office of the Employment Advocate.

[8] The Agreement specifies the types of employment, hours of work, roster arrangements and breaks, leave provisions, public holidays, classifications, termination and resignation provisions and matters associated with workplace arrangements and procedures.

[9] The Agreement provides for “minimum legal entitlements only, and shall not restrict the Employer and Employee/s from agreeing to higher rates of pay, or additional benefits” (clause 3.2).

[10] The minimum rates of pay for employees are set out in clause 8 of the Agreement. That clause states that:

The legal minimum rates of pay are for each hour worked by Employees are as specified in Schedule A to this Agreement, and will be adjusted to reflect movements to APCS [Australian Pay and Classifications Scales] rates made by the AFPC [Australian Fair Pay Commission].

[11] The rates of pay listed in the Agreement are those that operated at the time the Agreement was lodged with the OEA.

[12] Upon its nominal expiry date, the Agreement has not been updated.

[13] The relevant reference award is the General Retail Industry Award 2010 (GRIA).

The views of the employer and employees

[14] On receipt of the application the matter was listed for a Mention in which Directions to file materials were proposed. On 16 September 2020, following consultation between the SDA and QBD, consent directions were issued in relation to the application which required:

a. All employers covered by the Agreement to serve all employees covered by the Agreement, a copy of the Application documents and directions by no later than 5:00 pm on Friday, 25 September 2020.

b. The Employees covered by the Agreement to indicate their views and make any submission in relation to the application to terminate the Agreement by providing those views by email to [email protected] by 5:00 pm on Friday, 2 October 2020.

c. The Applicant and employers to file in the Commission any further submissions in reply by 5:00 pm on Friday, 16 October 2020.

[15] As a consequence of the Directions the Commission received a submission from an employee covered by the Agreement. The employee, who worked as a casual employee, stated their view that the Agreement failed to meet the minimum standards of the General Retail Industry Award 2010 (GRIA), as the Agreement failed to guarantee the basic casual loading rate of 25% or detail penalty rates for weekends, late night trade or public holidays. The Agreement lacked terms that place employees better off overall compared to the award, making them worse off than under the GRIA. Additionally, the Agreement failed to outline basic working conditions such as rest and meal breaks or the minimum 12-hour break between work periods.

[16] In its submission, the SDA repeated the views of the employee outlined above. It further contended that as the Agreement was over 10 years beyond its nominal expiry date, the application to terminate should be given more weight.

[17] In its submissions, the Employer considered that the Agreement no longer met its business needs and stated that, with a view to providing fair and consistent pay entitlements to all employees, it supported the termination of the Agreement.

Should the Commission terminate the Agreement?

[18] I do not consider that it would be contrary to the public interest to terminate the Agreement. The public interest is well served by the maintenance of minimum employment standards as given effect through modern awards and the application of those standards to employees. This agreement no longer meets this test for the public interest. The Agreement is over 10 years old and contains terms and conditions well below the minimum standard set by the relevant modern award. I am satisfied that the public interest is served by the maintenance of relevant and up to date wages and conditions of employment that better reflect the contemporary workplace. The termination of this Agreement will result in employees being covered by a modern award (GRIA).

[19] I am, for these reasons, satisfied that it is not contrary to the public interest to terminate the Agreement.

[20] I have sought the views of the SDA, employer and employees and each of those who has responded has indicated that they support to the termination of the Agreement.

[21] There will be no adverse effect of termination of the Agreement on employees that has been expressed to me.

Conclusion

[22] For all of these reasons I have decided to terminate the QBD The Bookshop Employee Collective Agreement 2007.

[23] The employer has requested a short period of time in order to transfer its payroll to reflect the requirements of the GRIA and to provide training to relevant staff, taking into account its payroll cycle. I consider this request reasonable.

[24] In these circumstances, I have decided that the termination should take effect from 23 November 2020.

COMMISSIONER

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