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

Printed by authority of the Commonwealth Government Printer

Ausrep Pty Ltd T/A Ausrep applied to the Fair Work Commission for termination of the Employee Collective Agreement 2008. The applicant argued that the agreement was no longer appropriate due to changes in the business environment and the workforce. The application was opposed by the relevant trade union. The Fair Work Commission heard the matter and had to decide whether the changes in the business environment and workforce were significant enough to warrant the termination of the existing agreement.

The central legal issue before the Commission was whether the changes in the business environment and workforce were of such a nature and magnitude that they justified terminating the existing collective agreement. The Commission considered whether the changes had fundamentally altered the bargaining power of the parties, the nature of the work, or the terms and conditions of employment. The applicant needed to demonstrate that the changes were not merely temporary or cyclical but represented a permanent shift that rendered the existing agreement obsolete or ineffective.

The Commission found that the changes in the business environment and workforce were significant but did not reach the threshold required for termination of the existing agreement. The Commission held that while the changes had altered some aspects of the workplace, they did not fundamentally undermine the collective agreement's purpose or effectiveness. The Commission noted that the parties could negotiate modifications to the agreement to address the changes, and it was premature to terminate the agreement entirely. Therefore, the application for termination was dismissed.

The Commission's final orders were that the application for termination of the Employee Collective Agreement 2008 be dismissed. The Commission encouraged the parties to engage in further negotiations to address the changes in the business environment and workforce, and it directed the parties to continue to cooperate in good faith to reach a modified agreement if possible.

Ausrep Pty Ltd T/A Ausrep

DECISION

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Legal Principle Established