Country Road Clothing Pty Limited T/A Country Road

[2019] FWCA 3179

[2019] FWCA 3179

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Country Road Clothing Pty Limited T/A Country Road
(AG2019/927)

COUNTRY ROAD RETAIL TEAM MEMBERS COLLECTIVE AGREEMENT VIC, TAS & QLD 2009

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 10 MAY 2019

Termination of the Country Road Retail Team Members Collective Agreement Vic, Tas & Qld 2009.

[1] On 28 March 2019, Country Road Clothing Pty Limited T/A Country Road (the applicant) lodged an application for the termination of a collective agreement known as the Country Road Retail Team Members Collective Agreement Vic, Tas & Qld 2009 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) applies. The effect of Item 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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.”

[3] 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.”

[4] I am satisfied it is appropriate to terminate this agreement. It expired nearly seven years ago. The rates of pay are well below those contained in the General Retail Industry Award 2010 (the Award).

[5] The Award provides more generous penalty rates than the Agreement for late night work and for Saturdays, although I note that they are not as generous for Sundays and public holidays.

[6] There are a number of other benefits under the Award that do not apply under the Agreement including in relation to overtime and the opportunity for casual employees to convert to part time or full time employment.

[7] I note that the applicant intends to ‘grandfather’ certain Agreement provisions, including the rate of pay for Level 3 and Level 4 employees, and the rate of pay for employees under 21 years of age. In addition, the applicant intends to make a one-off payment to permanent employees who are employed under the Agreement at the date of termination that it assesses as being worse off (in terms of take home pay) under the Award than under the Agreement.

[8] The business of the Country Road Group has changed significantly in the decade since the Agreement came into operation and the majority of its retail employees are now employed under the Award. Termination of this Agreement would therefore have administrative benefits for the applicant.

[9] In all the circumstances, I do not consider that terminating the agreement would be contrary to the public interest. I have considered, and am satisfied, as to each of the matters contained in s.226 of the Act.

[10] The Agreement is terminated effective 19 May 2019.

SENIOR DEPUTY PRESIDENT

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