Capital International Pty Ltd T/A Daniel Watkins Deja Vu

[2014] FWCA 7820

[2014] FWCA 7820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Capital International Pty Ltd T/A Daniel Watkins Deja Vu
(AG2014/8825)

DANIEL WATKINS DEJA VU (THE RETAILERS ASSOCIATION) EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER SPENCER	BRISBANE, 10 DECEMBER 2014

Application for termination of Daniel Watkins Deja Vu (The Retailers Association) Employee Collective Agreement 2009.

[1] Capital International Pty Ltd T/A Daniel Watkins Deja Vu (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Daniel Watkins Deja Vu (The Retailers Association) Employee Collective Agreement 2009 (the Agreement).

[2] The Agreement was made on 20 July 2009 to set the terms and conditions for employees of Capital International Pty Ltd T/A Daniel Watkins Deja Vu (the Applicant). The Agreement has a nominal expiry date of 27 July 2014.

[3] The Commission issued Directions to the Applicant to file material in reference to s.226 of the Act (set out below).

[4] The Applicant filed materials in accordance with these Directions.

Legislation

[5] Section 226 of the Act provides:

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.

Consideration

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[6] The Applicant submitted that, as the Employer covered by the Agreement, it was their view that the Agreement should be terminated as it is not referred to for any employment entitlement or pay rate information.

[7] The Applicant submitted two documents being in the form of two letters signed by two employees of the Applicant. That documents identified that as employees of the Applicant to whom the Agreement applied, the employees were aware of and agreed to the application. The Applicant confirmed that this was all the employees of the Applicant covered by the Agreement.

[8] There are no employee organisations covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[9] The Respondent submitted that termination of the Agreement would have no effect in that employees covered by the Agreement are paid “under” the General Retail Award (MA000004). The effect of this, so it was submitted, was that employees would continue to be paid under the General Retail Award (being the relevant Modern Award which covers the Applicant and their employees), and that there would be no change in entitlements or conditions of employees as a result of terminating the Agreement.

[10] The employee documents confirmed that the employees were aware that the termination of the Agreement would have no actual effect on their employment. The signatory employees also confirmed that they are aware that, despite the existence of the Agreement, they are paid “in accordance” with, or above, the Award.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[11] The Respondent did not make submissions in relation to the public interest in the termination of the Agreement.

Conclusion

[12] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[13] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement. The employees will revert to the Award.

[14] The Commission is satisfied that it is appropriate in all the circumstances and having considered the views of the Applicant and the employees and the circumstances of the Applicant and the employees.

[15] Having considered the material and s.226 of the Act the Agreement must be terminated.

[16] The termination will operate from the date of this decision.

[17] I Order accordingly.

COMMISSIONER

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