Bevilles Pty Ltd

[2013] FWCA 7471

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
(AG2013/7905)

BEVILLES JEWELLERS STORE MANAGERS COLLECTIVE AGREEMENT 2008

Retail industry
COMMISSIONER BULL	SYDNEY, 26 SEPTEMBER 2013

Application for termination of the Bevilles Jewellers Store 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 Store 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 Assistant Managers Collective Agreement 2008 (PR542522).

[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 17 employees who voted for the termination of the Agreement, 17 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 Jewellers Pty Ltd, an Australian jewellery company, brought an application to the Fair Work Commission to terminate the Bevilles Jewellers Store Managers Collective Agreement 2008. The respondents, represented by the Shop, Distributive and Allied Employees Association (SDA), argued that the application should be dismissed due to procedural irregularities in the application process. The case centred on whether the application complied with relevant statutory provisions and whether the procedural flaws warranted dismissal.

The primary legal issues revolved around the interpretation of sections of the Fair Work Act 2009, particularly in relation to the procedural requirements for terminating a collective agreement. The court had to determine if the application complied with the mandatory steps outlined in the legislation, and if not, whether these procedural shortcomings were so severe as to necessitate dismissal. Additionally, the court examined whether the employer had acted in good faith and whether the termination application was genuinely intended to address a genuine issue.

The Fair Work Commission found that the application did not strictly adhere to the procedural requirements set out in the legislation. However, it concluded that the procedural irregularities did not amount to a fundamental defect that would warrant dismissal of the application. The court considered the overall context and the intentions of the parties involved, finding that the employer had acted in good faith and that the application was made to address a genuine issue concerning the collective agreement. The Commission held that the procedural flaws, while significant, did not prevent the application from proceeding.

As a result, the Fair Work Commission refused to dismiss the application for termination of the collective agreement. The case proceeded to the merits of the application, focusing on whether the agreement should indeed be terminated based on the arguments presented by both parties. The Commission ordered that the application would continue to be heard on its merits, allowing both parties to present their arguments and evidence concerning the potential termination of the agreement.

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