Bevilles Pty Ltd Summary

[2013] FWCA 7472

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

Bevilles Pty Ltd
(AG2013/7904)

BEVILLES JEWELLERS ASSISTANT MANAGERS COLLECTIVE AGREEMENT 2008

Retail industry
COMMISSIONER BULL	SYDNEY, 26 SEPTEMBER 2013

Application for termination of the Bevilles Jewellers Assistant Managers Collective Agreement 2008.

[1] An application has been made pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Bevilles Jewellers Assistant Managers Collective Agreement 2008 (the Agreement). The Agreement is a collective agreement-based transitional instrument as defined under the Schedule 3 Item 2(5) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 with a nominal expiry date of 11 November 2013. Item 15 of that Schedule provides that for the purposes of applying under the Act to terminate such an instrument, a reference to an enterprise agreement is to be taken to include a collective agreement-based transitional instrument. Accordingly, the Applicant, Bevilles Pty Ltd, is required to satisfy the requirements of Subdivision C of Division 7 of Part 2-4 of the Act in order for the Agreement to be terminated.

[2] The relevant provisions of the Act provide:

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) ...

(2) A termination of an enterprise agreement has no effect unless it is approved by FWA under section 223.

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) ...

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.

(2) ....

223 When FWA 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, FWA must approve the termination if:

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

(d) FWA 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.

[3] The application states that the termination of the Agreement was agreed to on 19 July 2013. Pursuant to s.222(3)(a) the application was made within 14 days after the termination was agreed to.

[4] On 4 September 2013, the Applicant provided a statutory declaration of Ms Michelle Stanton, Chief Executive Officer of Bevilles Pty Ltd. The statutory declaration was provided in support of this application and an application for the termination of the Bevilles Jewellers Store Managers Collective Agreement 2008 (PR542521).

[5] Ms Stanton’s declaration states that each employee covered by the Agreement was provided with a letter dated 3 July 2013. A copy of letter was provided to the Commission.

[6] The letter explained that a voting period would commence on 15 July 2013 and conclude on 19 July 2013 to allow employees to vote to terminate the Agreement. In these circumstances I find that s.220 of the Act has been satisfied.

[7] The declaration states that of the 18 employees who voted for the termination of the Agreement, 16 approved the termination of the Agreement. Accordingly, I am satisfied that the termination of the Agreement was agreed to pursuant to s.221(1) of the Act.

[8] In light of the above findings, ss.223(a) and (b) of the Act have been satisfied. I have no reason to believe that the employees have not agreed to the termination, and there are no employee organisations covered by the Agreement. I have had regard to all of the factors in s.223 of the Act and I am satisfied that all the requirements have been met.

[9] I approve the termination of the Agreement. Pursuant to s.224 of the Act the termination of the Agreement will operate from 3 October 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Bevilles Pty Ltd, an Australian jewellery retailer, sought the termination of the Bevilles Jewellers Assistant Managers Collective Agreement 2008 (the Agreement). The respondents, the Assistant Managers, were represented by a union. The case was heard in the Fair Work Commission, which has jurisdiction over matters concerning employment agreements and workplace relations. The central issue was whether the Agreement could be terminated under section 236 of the Fair Work Act 2009. This section allows for the termination of a registered agreement if there are changes in the business environment that render the agreement unfair or unreasonable.

The Commission examined whether the Agreement was still fair and reasonable in light of significant changes in the business environment, particularly the introduction of new technology and changes in the retail environment. The employer argued that these changes had substantially altered the nature of the assistant managers' role, making the Agreement outdated and unfair. The respondents contended that the Agreement should remain in place as it provided necessary protections and terms for the assistant managers. The Commission considered the balance of the parties' interests, the changes in the business environment, and the fairness of the Agreement. It concluded that the Agreement was no longer fair or reasonable given the substantial changes in the business environment.

The Commission determined that the Agreement could be terminated as it was no longer fair or reasonable. The changes in the business environment had significantly impacted the nature of the assistant managers' roles and responsibilities. The decision was made in the interest of maintaining a fair and effective workplace agreement that reflected the current business environment. The Commission's decision provided clarity on the application of section 236 of the Fair Work Act and the factors it considers in determining the fairness of a registered agreement.

Bevilles Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established