Application by Ms Cheryl Napier

[2015] FWCA 1385

[2015] FWCA 1385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Ms Cheryl Napier
(AG2015/71)

KHAN'S GROUP EMPLOYEE COLLECTIVE AGREEMENT 2006

Retail industry
COMMISSIONER BULL	SYDNEY, 12 MARCH 2015

Application for termination of the Khan's Group Employee Collective Agreement 2006.

[1] On 14 January 2015, an application was made by Ms Cheryl Anne Napier (the applicant) to terminate the Khan’s Group Employee Collective Agreement 2006 (the Agreement) pursuant to s. 225 of the Fair Work Act 2009 (the FW Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The applicant is represented by the Shop, Distributive and Allied Employees’ Association (SDA).

[2] The Agreement was approved by the Office of the Employment Advocate (Agreement Identification AC303405) in accordance with Part 8 of the Workplace RelationsAct 1996 (WR Act) as a single employer pursuant to s.322 of the WR Act. The Agreement has a nominal expiry date of 28 November 2011.

[3] In December 2011, the SDA wrote to the employers covered by the Agreement (respondents) requesting they agree to bargain for a new enterprise agreement. The SDA state they received no response.

[4] On 21 November 2014, the SDA wrote to the respondents of its intention to assist its members in lodging an application with the Fair Work Commission to terminate the Agreement. The SDA submitted that no response was received from the respondents.

[5] On 14 January 2015, the SDA filed with the Commission and served on the respondents, the application for “Termination of an Enterprise Agreement after the Nominal Expiry Date” and the applicant’s statutory declaration in accordance with Rule 26(2) of the Fair Work Commission Rules 2013.

Relevant legislation

[6] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[7] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWA

(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.

[8] Section 225 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 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.

[9] The applicant being an employee covered by the Agreement 1, under s.225(b) of the FW Act, has the necessary standing to bring the application. The Agreement has passed its nominal expiry date.

[10] Section 226 provides when the FWC must terminate an enterprise 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.”

[11] Pursuant to s.226, on 6 February 2015, the Commission issued Directions to the respondents 2 to ascertain the views of employees and each employer subject to the Agreement with regard to the proposed termination and the likely effect that the termination will have on each of them.

[12] No employee submissions were received, and no respondents opposed the application.

[13] In reference to s.226 of the FW Act, the Commission notes that the applicant submitted in her Statutory Declaration , that the General Retail Industry Award 2010 (the Award) , was the award which employees subject to the Agreement would otherwise be covered by and provides greater entitlements in comparison to the Agreement.

[14] On 2 March 2015, the respondents representative, Ms Brown, from Master Grocers Australia advised the Commission that it was negotiating with the SDA to make a new enterprise agreement for all Khan’s Group stores. On this basis, the respondent requested the Commission delay the termination of the Agreement to allow the parties to finalise a replacement agreement.

[15] On 3 March 2015, the Commission wrote to the parties requesting that the parties discuss an agreement with respect to the termination date. The Commission received correspondence from the SDA on 10 March 2015, advising that the parties had agreed that termination of the Agreement should take effect on and from 27 April 2015.

[16] The SDA has also advised the Commission that the respondents have agreed to apply public holiday rates payable under the Award for work performed on 3:

● Good Friday;

● Easter Sunday;

● Ester Monday (3 April 2015 to 6 April 2015); and

● Anzac day.

Conclusion

[17] Having regard to the submissions and processes exercised by the applicant and the legislative requirements of s.226 of the FW Act, I am satisfied that it is not contrary to the public interest to terminate the Agreement. Further, employees will benefit from greater entitlements under the Award.

[18] Section 227 of the FW Act allows the Commission to specify the termination date which will be on and from 27 April 2015, in accordance with the parties wishes.

COMMISSIONER

 1   Employee of Dunpec Pty Ltd

 2   Via the respondent’s representative, Ms Marie Brown, National Legal Counsel of Master Grocers Australia.

 3   Being the public holidays within the proposed termination date of the Agreement.

Printed by authority of the Commonwealth Government Printer

<Price code A, AC303405  PR561469>