Application by Ms Janelle Chapman

[2019] FWCA 6705

[2019] FWCA 6705

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Application by Ms Janelle Chapman
(AG2019/2329)

DOVE HOLM PTY LTD EMPLOYEE COLLECTIVE AGREEMENT

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 26 SEPTEMBER 2019

Application for termination of the Dove Holm Pty Ltd Employee Collective Agreement. Agreement terminated.

[1] The Shop, Distributive and Allied Employees’ Association (SDA) filed an application on behalf of Ms Janelle Chapman (the applicant) originally described as Employee X pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act), as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), to terminate the Dove Holm Pty Ltd Collective Agreement (the Agreement). The employer named in the Agreement is Dove Holm Pty Ltd T/A Milton IGA (the employer).

[2] The Agreement has a nominal expiry date of 11 July 2011 and is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

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

Collective agreement-based transitional instruments: termination by 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.

[4] Section 225 of the 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.

[5] It is noted that the application to terminate the Agreement was filed by the SDA on behalf of the applicant who was referred to as Employee X and the application initially stated that the name and details of the applicant would be provided to the Fair Work Commission (the Commission) only at the request of the Commission and/or the Employer. On 26 July 2019, the Commission requested the applicant’s name be provided to the Commission.

[6] On 31 July 2019, The SDA filed on behalf of Employee X a Statutory Declaration containing two annexures, being payslips and a group certificate for the financial year 2018, and requested that the applicant’s name and Statutory Declaration be kept confidential in accordance with s.593(3) of the Act.

[7] The applicant stated in her Statutory Declaration that she is currently employed by the employer at the Milton IGA supermarket and is still covered by the Agreement. The applicant stated she is a member of the SDA and has appointed the SDA to act on her behalf to terminate the Agreement.

[8] The Commission requested the applicant to provide reasons to support her request that an order be made under s.593 of the Act to keep her name and Statutory Declaration confidential. The applicant was also requested to provide further evidence that she was employed by the employer at the time the application to terminate the Agreement was made on 1 July 2019, as the payslips provided earlier appeared to be in respect of work she had performed for the employer in March 2019.

[9] The SDA provided on behalf of the applicant a further payslip for the week commencing 1 July 2019 and confirmed that the applicant had decided to withdraw her application under s.593 of the Act.

[10] Accordingly, I am satisfied that the applicant, being Ms Janelle Chapman, has the necessary standing to bring the application as an employee covered by the Agreement.

[11] It is also clear that the Agreement has passed its nominal expiry date.

When the Commission Must Terminate an Agreement

[12] Section 226 of the Act sets out the requirements to be met before the Tribunal can terminate an agreement where an application is made under s.225 of the Act.

226 When FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWC must terminate the agreement if:

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

(b) 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.

[13] The application was accompanied by a Statutory Declaration of Mr Gerard Dwyer, National Secretary/Treasurer of the SDA, which addressed reasons why the Agreement’s termination would not be contrary to the public interest.

[14] Mr Dwyer stated in his Statutory Declaration that:

•  The terms and conditions provided in the Agreement are significantly below the minimum terms and conditions of the General Retail Industry Award 2010 (the Award);

•  Employees covered by the Agreement suffer significant disadvantage when compared with the rates of pay and terms and conditions of employment under the Award;

•  The rates of pay in the Agreement are lower than the Award;

•  There are no penalty rates in the Agreement whereas the Award contains penalty rates for evening work Monday to Friday, Saturday and Sunday work, and for public holidays;

•  The Agreement does not contain many of the rostering benefits contained in the Award;

•  The Agreement does not contain any allowances, whereas the Award provides for various allowances;

•  The Agreement does not contain a number of other benefits contained in the Award including right to request casual conversion, accident pay, requests for flexible working arrangements, and annual leave loading; and

•  The Award provides a fair and relevant safety net of terms and conditions for employees engaged in the retail industry. It is not in the public interest for an enterprise agreement which has passed its nominal expiry date to fall below this safety net.

[15] On 8 August 2019, the employer provided written submissions in response to the applicant’s application. The employer confirmed it did not oppose the application and submitted the termination is not contrary to the public interest as the Award provides contemporary and relevant conditions of employment, which ensures fairness to the employees and business efficacy for the employer.

[16] On 16 August 2019, the Commission issued Directions seeking the views of the employees covered by the Agreement regarding the application to terminate the Agreement in accordance with s.226(b)(i) of the Act. The employer was directed to bring to the attention of the employees covered by the Agreement the application; and, any employees wishing to provide views regarding the application were directed to contact my chambers via email by close of business on 30 August 2019.

[17] No correspondence has been received from any employees in respect of the application.

[18] Taking into consideration the views of the applicant and the employer, I am satisfied that the requirements of s.226 of the Act have been met, including that termination of the Agreement is not contrary to the public interest.

When Termination Comes Into Operation

[19] Section 227 of the Act states that if an enterprise agreement is terminated under s.226 of the Act, the termination operates from the day specified in the decision to terminate the agreement.

[20] The employer, in its 8 October 2019 submissions, requested that the date on which the termination of the Agreement operates, and the Award becomes effective, be a date 6 months after the date of approval of the application to terminate the Agreement. The employer submitted that the 6-month timeframe would enable it to carry out the stages of the transition to the Award, with the following reasons provided in support:

•  The employer would be able to familiarise itself with the Award;

•  Effectively apply the Award and have appropriate consultation with its employees about the respective changes to their employment;

•  Adjustments will be required to pay employees in accordance with the Award; and

•  The employer needs to undertake burdensome administrative tasks to ensure full compliance with the Award in respect of all its employees;

[21] On 22 August 2019, the SDA provided written submissions on behalf of the applicant in which it stated that the 6-month timeframe sought by the employer is manifestly excessive. The SDA submitted that a timeframe of 28 days following the making of orders by the Commission terminating the Agreement is reasonable in the circumstances.

[22] On 9 September 2019, the parties confirmed they had reached agreement and provided to the Commission a copy of proposed consent orders requesting that the date of termination of the Agreement take effect from 2 December 2019.

Conclusion

[23] The application to terminate the Agreement is approved.

[24] In accordance with s.227 of the Act, the Agreement is terminated with effect from 2 December 2019, allowing in the Commission’s view a reasonable period for the employer to make any necessary changes and take any necessary action to ensure a smooth transition to the Award.

DEPUTY PRESIDENT

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