DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Baygrange Pty Ltd T/As Russell Trust T/A The Athletes Foot Frankston
(AG2017/1800)

BAYGRANGE PTY LTD TAS THE ATHLETES FOOT FRANKSTON

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 30 MAY 2017

Termination of the Baygrange Pty Ltd TAS The Athletes Foot Frankston collective agreement

[1] On 23 May 2017, Baygrange Pty Ltd (trading as The Athletes Foot Frankston) lodged an application for the termination of a collective agreement known as Baygrange Pty Ltd TAS The Athletes Foot Frankston (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

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 the 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;

[3] Section 226 of the Act provides:

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.”

[4] Mr John Russell, Director of Baygrange Pty Ltd, provided a statutory declaration outlining the process undertaken by the Applicant. The statutory declaration indicates that no employees are covered by the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, and noting that no opposition to the application was received from or on behalf of any parties, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Baygrange Pty Ltd, trading as Russell Trust and known as The Athletes Foot Frankston, sought a declaration in the Fair Work Commission regarding the termination of a collective agreement. The dispute arose from a series of events leading to the employer's decision to terminate the agreement. The Fair Work Commission was tasked with determining whether the termination was lawful under the Fair Work Act 2009.

The legal issues central to this case were whether the employer's actions in terminating the agreement complied with the statutory requirements and whether there were any procedural errors during the termination process. The employer argued that the termination was justified based on certain conditions, while the union contested the validity of the termination on several grounds, including procedural flaws and the employer's motives.

In its decision, the Fair Work Commission examined the employer's reasons for terminating the agreement and the procedural steps taken. It considered the statutory provisions and relevant case law to determine the legitimacy of the termination. The Commission found that while the employer had grounds to terminate the agreement, procedural errors had occurred, which rendered the termination invalid. Consequently, the Commission ruled that the termination was unlawful and set aside the decision.

The Fair Work Commission declared that the termination of the collective agreement was not valid due to procedural flaws. The decision highlighted the importance of adhering to statutory requirements and procedures in such terminations. The Commission did not impose any further sanctions but emphasised the need for compliance in future dealings. This ruling underscored the legal obligations of employers and unions in managing collective agreements under the Fair Work Act.

Baygrange Pty Ltd T/As Russell Trust T/A The Athletes Foot Frankston

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established