Calleija Investments (QLD) Pty Ltd ATF The Diamond Trust T/A Calleija Jewellers

[2021] FWCA 5570

[2021] FWCA 5570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Calleija Investments (QLD) Pty Ltd ATF The Diamond Trust T/A Calleija Jewellers
(AG2021/6562)

CALLEIJA JEWELLERS ENTERPRISE AGREEMENT

Retail industry
COMMISSIONER HUNT	BRISBANE, 7 SEPTEMBER 2021

Application for termination of the Calleija Jewellers Enterprise Agreement.

[1] On 5 August 2021, Calleija Investments (QLD) Pty Ltd ATF The Diamond Trust T/A Calleija Jewellers (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Calleija Jewellers Enterprise Agreement (the Agreement).

[2] The Agreement was approved on 9 September 2010 1, with a nominal expiry date of four years from the date of approval. The nominal expiry date has passed.

[3] No employee organisations (unions) are covered by the Agreement.

[4] The application was supported by a Form F24C statutory declaration (F24C) from Mr John Calleija, Director of the Employer, which declared, amongst other things, that there are seven employees covered by the Agreement (the Covered Employees). If the Agreement is terminated, the employees will then be covered by the General Retail Industry Award 2020 (the Award). 2 A number of other employees are covered by the Award and not by the Agreement by virtue of the fact that the Agreement is a transferable instrument, covering only some of the Employer’s employees who had been transferring employees some years ago.

[5] The Employer filed supplementary information including correspondence dated 16 June 2021 that it had sent to the Covered Employees. The correspondence included a letter outlining its intention to make this application, along with a table comparing the minimum wages and entitlements for employees provided by the Agreement compared to the Award. The correspondence included a link to a survey which it invited the Covered Employees to complete.

[6] The Employer filed the responses of the Covered Employees to the survey. The survey relevantly included the question: “Do you support Calleija Jewellers applying to the Fair Work Commission to terminate the Calleija Jewellers Enterprise Agreement?” All seven of the Covered Employees responded “yes”, and when given the opportunity to provide further comment, they declined.

[7] I listed the matter for a conference by telephone on 11 August 2021. Following the conference, the Employer agreed to provide additional information regarding the transfer of business from John Calleija Jewellers Pty Ltd (John Calleija) to Calleija Investments (Qld) Pty Ltd (Calleija Investments), along with additional information regarding undertakings by the Employer to recognise certain entitlements for the Covered Employees.

[8] On 24 August 2021, the Employer provided further information. In regard to the transfer of business, the Employer advised:

“… on 22 January 2014, Calleija Investments replaced John Calleija as the Trustee for The Diamond Trust.

Relevantly, at the date of the transfer, ownership of the boutique and its contents wholly transferred to from John Calleija to Calleija Investments and employees of John Calleija transferred to Calleija Investments. Calleija Investments recognised service and leave entitlements of all employees transferring from John Calleija.

Employees engaged by Calleija Investments on or after 22 January 2014 were (and are) covered by the General Retail Industry Award.”

[9] In regard to the recognition of entitlements, the Employer remarked that:

“If the Agreement is terminated, the [covered employees] will become covered by the General Retail Industry Award 2020. We are instructed that the Company has, in written communications to staff:

•  confirmed that no employee’s remuneration will be affected by any decision to terminate the Agreement and all above-award salaries will be preserved; and

•  that new contracts of employment will be issued at the time the Agreement is terminated which, in addition to preserving current salaries, will include the following clause (which is intended to replicate the corresponding entitlement in the Agreement):

‘If a public holiday falls on a day which you would not normally be required to work, you will be entitled to receive time off in lieu equal to the number of hours you would have worked on the public holiday, had it been a day on which you would normally be required to work.’”

[10] I then directed the Employer to communicate in writing to each of the Covered Employees, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 25 August 2021, I received confirmation from the Employer that it had complied with the above direction. Each of the Covered Employees were invited to provide any views relevant to the application. I did not receive any correspondence from any of the Covered Employees to my Chambers by 1 September 2021.

Termination of an enterprise agreement after its nominal expiry date

[11] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are 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

[12] Based on the material contained in the statutory declaration of Mr John Calleija, and in consideration of s.226(a) of the Act, I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[13] There are seven employees covered by the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

[14] I have had regard to a comparison table provided by the Employer, detailing the differences between the Agreement and the Award. While there will be some reductions in penalty rates and conditions to employees under the Award when compared with the Agreement, there are a substantial number of improved penalty rates and conditions for employees under the Award when compared with the Agreement. The comparison table was provided by the Employer to the Covered Employees for their consideration on 16 June 2021.

[15] Having taken into account the circumstances of the employees and the likely effect that the termination will have on the employees, together with the Employer’s desire to terminate the Agreement, I consider that it is appropriate to terminate the Agreement.

[16] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[17] The termination will take effect from today, 7 September 2021.

COMMISSIONER

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 1   [2010] FWAA 6854.

 2   [MA000004].