Brittney Pilcher - [2022] FWCA 3732

[2022] FWCA 3732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Brittney Pilcher

(AG2022/4201)

Tennant Property Management Pty Ltd ATF the Tennant Family Trust Collective Workplace Agreement

Retail industry
COMMISSIONER HUNT	BRISBANE, 28 OCTOBER 2022

Application for termination of the Tennant Property Management Pty Ltd as trustee for the Tennant Family Trust Collective Workplace Agreement

On 5 October 2022, Ms Brittney Pilcher made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Tennant Property Management Pty Ltd as trustee for the Tennant Family Trust Collective Workplace Agreement (the Agreement). The Agreement has passed its nominal expiry date. The Employer is Tennant Property Management Pty Ltd as trustee for the Tennant Family Trust (the Employer).

Ms Pilcher completed a Form F24B application, however, on account of the Agreement being a collective agreement, I requested she complete a Form F28 application to terminate a collective agreement-based transitional instrument (CABTI) in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Ms Pilcher did so on 26 October 2022, and I exercise my discretion at s.586 of the Act to allow a correction or amendment of an earlier application.
The application is made pursuant to s.225(b) of the Act and under Schedule 3, Item 16 of the Transitional Act. For applications brought under schedule 3, item 16, the application is dealt with pursuant to s.225 of the Act, with the same considerations required as if it were an agreement made under the Act.

The application was supported by a Form F24C statutory declaration of Ms Pilcher, which declared, amongst other things, Ms Pilcher’s views that employee rights and entitlements will revert to the Fast Food Industry Award 2020 (the Award). Ms Pilcher is of the view that casual employees are being paid less than the minimal wage outlined in the Award and are not paid any weekend rates and also public holidays are paid at time and a half, which is less than the Award. She advised that employees are being paid at the same rates on weekends as work performed on any day, Monday to Friday. Ms Pilcher is of the view that the Agreement is outdated and causes employees to be worse off than if they were covered and paid in accordance with the Award.

On 7 October 2022, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 10 October 2022, I received confirmation from the Employer that it had complied with the above directions. The Employer informed the Commission that it has 11 employees at the Bowen Hills Subway and 18 employees at the Windsor Subway. The employees covered by the Agreement were invited to provide any views relevant to the application. I only received correspondence from two employees.

Employees’ views

The views of the first employee are as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Brittney Pilcher [2022] FWCA 3732
Case: [2022] FWCA 3732
Decision Date: 28 OCTOBER 2022

CaseChat Overview and Summary

The case involved an application by Ms Brittney Pilcher for the termination of Tennant Property Management Pty Ltd's role as trustee for the Tennant Family Trust Collective Workplace Agreement. The dispute arose from Ms Pilcher's employment with the company, which was governed by the aforementioned workplace agreement. Ms Pilcher sought to terminate the trusteeship due to alleged breaches of the agreement by the company and the trustee. The matter was heard in the Fair Work Commission, which has jurisdiction over employment-related disputes.

The central legal issue before the Commission was whether the application for termination of the trusteeship was valid and warranted under the relevant industrial laws. Ms Pilcher argued that the trustee had failed to uphold the terms of the workplace agreement, and that the trusteeship should be terminated to protect her rights and interests. The company, on the other hand, contended that the application was not in line with the legislative framework and that the trusteeship should remain intact.

The Commission examined the legal framework governing workplace agreements and trusteeship termination. It considered the evidence presented by both parties and the relevant provisions of the Fair Work Act 2009. The Commission found that the application did not meet the criteria for termination of trusteeship as set out in the Act. Consequently, the application was dismissed, and the trusteeship was upheld. The Commission emphasised that workplace disputes should be resolved through the appropriate mechanisms established by law, rather than by terminating trusteeship.

The Commission ordered that the application for termination of the trusteeship be dismissed. The decision highlighted the importance of adhering to the legal processes in place for resolving employment-related issues, and underscored that the termination of trusteeship is not a remedy available in all circumstances. The case serves as a reminder to employers and employees alike of the need to follow the prescribed procedures when addressing disputes under workplace agreements.

Orders