Benedict Armitage

[2019] FWCA 6758

[2019] FWCA 6758

FAIR WORK COMMISSION

DECISION

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

Benedict Armitage
(AG2019/1788)

OUTDOOR LIFE GROUP COLLECTIVE AGREEMENT

Retail industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 1 OCTOBER 2019

Application for termination of the Outdoor Life Group Collective Agreement.

[1] On 28 May 2019, Mr Benedict Armitage applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Outdoor Life Group Collective Agreement (Agreement). The Agreement has passed its nominal expiry date and the Applicant is an employee covered by the Agreement.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Part 2-4, Division 7, Subdivision D of the FW Act provides as follows:

“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;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration

[4] As the Agreement has passed its nominal expiry date and the Applicant is an employee covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to s.225(a) of the FW Act.

[5] Directions were issued seeking a response from Southern Cross Equipment T/A Outdoor Life Group (the Employer) and the employees covered by the Agreement regarding their views, their circumstances and the likely effect that the termination of the Agreement would have on them. The Commission received a submission from the Employer and a number of submissions from employees opposing the termination of the Agreement.

[6] I issued a Statement to the parties on 30 July 2019 and sought further submissions from the employees covered by the agreement. A number of further submissions were received and the matter was listed for hearing on 18 September 2019.

[7] Prior to the hearing, the parties notified my chambers that the Employer was withdrawing their objection to the application and seeking the matter be listed for mention. A mention was held on 13 September 2019 and subsequently the hearing was vacated and consent directions issued to the parties.

[8] The Employer filed a submission in the Commission on 20 September 2019 confirming the consent position of the Employer and the Applicant. The Employer provided the following undertaking on the basis that the Agreement would be terminated with an operative date of 1 December 2019:

“2. Undertaking

2.1 If the FWC terminates the Agreement, Outdoor Life undertakes to the FWC, for the duration specified in clause 3, to:

(a) apply clauses 8, 8A and 9 of the [General Retail Industry Award 2010] in relation to consultation about major workplace change, consultation about changes to rosters or hours of work and dispute resolution; and

(b) not Dismiss of any of its employees in its retail operations (with the exception of voluntary resignation or termination on the grounds of Serious Misconduct).

2.2 For the purposes of clause 2.1(b) above, Outdoor Life undertakes that failure to roster a regular and systematic casual employee will constitute Dismissal of employment.

3. Duration

3.1 This Undertaking:

(a) commences on the date specified by the FWC to terminate the Agreement (Termination Date); and

(b) ceases on the Proposed Termination Date.” (sic)

[9] Based on the material filed by the parties to the application 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 s.226(b)(i) and (ii) of the FW Act, I consider that it is appropriate to terminate the Agreement.

[10] The termination will operate from 1 December 2019.

COMMISSIONER

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