Ausrep Pty Ltd T/A Ausrep

[2020] FWCA 1516

[2020] FWCA 1516

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Ausrep Pty Ltd T/A Ausrep
(AG2020/589)

Retail industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 20 MARCH 2020

Application for termination of the Ausrep Employee Collective Agreement 2008.

[1] On 6 March 2020, Ausrep Pty Ltd T/A Ausrep applied for the termination of the Ausrep Employee Collective Agreement 2008 (the Agreement), under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Schedule 3, Item 15 of the TPCA Act provides that Subdivision C of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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.

[3] The Act provides as follows:

“221 - When termination of an enterprise agreement is agreed to Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

223 - When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 - When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.223 of the Act.

[5] On 11 March 2020, the Fair Work Commission (the Commission) directed the applicant to provide a copy of the application with its supporting statutory declaration, and a copy of the Commission’s Directions, to all employees covered by the Agreement. The Directions stated that any party seeking to oppose the application should contact Chambers. Further, the applicant was directed to advise the Commission as to how it had complied with the Directions.

[6] On 11 March 2020, the applicant provided the Commission with a copy of an email distributed to employees. The email included a copy of the application with its supporting statutory declaration, and a copy of the Commission’s Directions, thus confirming that the Directions had been complied with.

[7] The matter was listed for Non-Attendance Hearing on 20 March 2020. Any interested persons were advised to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[8] On the material before me I am satisfied that the tests in ss.221-223 are met. I must therefore approve the termination, and I do so.

[9] The termination will come into effect from the date when termination of the Agreement was agreed to between the parties, that being 4 March 2020.

DEPUTY PRESIDENT

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