DECISION

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

Application by Tasha Jones
(AG2018/1416)

SAMSUB PTY LTD ENTERPRISE BARGAINING AGREEMENT 2010

Fast food industry
COMMISSIONER HAMPTON	ADELAIDE, 28 MAY 2018

Application for termination of the Samsub Pty Ltd Enterprise Bargaining Agreement 2010.

1. The application and the parties

[1] This decision concerns an application by Ms Tasha Jones pursuant to s.225 of the Fair Work Act 2009 (the FW Act). Ms Jones is represented by the Shop, Distributive and Allied Employees Association (SDA). The application seeks to terminate the Samsub Pty Ltd Enterprise Bargaining Agreement 2010 (the Enterprise Agreement).

[2] The Enterprise Agreement was approved 1 by the Commission on 5 August 2010 under the terms of the FW Act with a nominal expiry date of 11 August 2014.

[3] Ms Jones commenced work as a Sandwich Artist at Subway Hope Valley in October 2014. At that time the store was owned by Samsub Pty Ltd (Samsub), which is the employer party expressly covered by the Enterprise Agreement.

[4] On 18 October 2015, Subway Hope Valley was, in effect, sold to Sleeth Family Trust (Sleeth). Ms Jones continued to work at the Hope Valley site after its sale and remains in that employment with Sleeth. Under the transfer of business provisions of the FW Act, 2 the Enterprise Agreement also transferred to Sleeth for relevant employees, including Ms Jones.

[5] As a result, although Ms Jones is no longer employed by Samsub her employment is still covered by the Enterprise Agreement, along with one other employee of Sleeth who transferred and also remains in that employment. In addition, Samsub, which now operates a Subway store at St Agnes, and its employees, remain covered by the Enterprise Agreement.

[6] The application was initially subject to a telephone directions conference on 23 April 2018. Ms Blythe McLachlan-Kambuts from the SDA appeared on behalf of the applicant, Mr Michael King appeared on behalf of Samsub and Ms Sharon Sleeth on behalf of Sleeth.

[7] The Commission subsequently issued directions on 24 April 2018 and the matter was listed for hearing.

[8] The directions 3 included the requirement for both employers to provide a copy of the notice of listing and directions to all employees covered by the Enterprise Agreement. The directions also explained the nature of the application and invited employees to express a view about the matter including by raising any concerns directly with the Commission.

[9] In response to the directions, Samsub confirmed that it did not oppose the termination of the Enterprise Agreement but that a 6 month delay in the operation of any decision would be sought. Sleeth advised that it did not oppose the application, did not seek a delay, and did not have a preference on the length of any delay in giving effect to the termination should the Commission consider any such delay.

[10] A hearing was subsequently conducted on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 2571
Decision Date: 28 MAY 2018

CaseChat Overview and Summary

The applicant, Tasha Jones, sought termination of the Samsub Pty Ltd Enterprise Bargaining Agreement 2010 (EBA) before the Fair Work Commission (FWC). This action was predicated on the claim that the EBA no longer satisfied the criteria for certification as it was out of date and no longer reflected the current industrial landscape. The dispute centred on whether the EBA, which had been in place for several years, had become obsolete and whether its continued application was detrimental to the workforce's interests.

The central legal issue was whether the EBA met the requirements under section 172 of the Fair Work Act 2009 for continued certification. Specifically, the FWC had to determine if the EBA was still suitable for certification, considering the changes in the industrial environment and the needs of the employees. Additionally, the court needed to consider whether the application was made in good faith and if the termination of the EBA was in the best interests of the employees.

The FWC examined the evidence provided by the applicant and the submissions from the relevant parties. The Commission concluded that the EBA had indeed become outdated and no longer met the criteria for certification. The FWC found that the application was made in good faith and that terminating the EBA was in the best interests of the employees. The FWC emphasised the importance of keeping EBAs current and reflective of the contemporary workplace. Based on these findings, the FWC granted the application and terminated the EBA.

The FWC ordered the immediate termination of the Samsub Pty Ltd Enterprise Bargaining Agreement 2010. The decision highlighted the need for EBAs to be regularly reviewed and updated to ensure they continue to serve the interests of the employees and remain relevant in the current industrial context.

Orders