Creative Field Marketing Pty Ltd t/a Creative Activation

[2017] FWCA 3311

[2017] FWCA 3311

FAIR WORK COMMISSION

DECISION

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

Creative Field Marketing Pty Ltd t/a Creative Activation
(AG2017/1176)

FIELD MARKETING PROJECT EMPLOYEES AGREEMENT

Scientific services
DEPUTY PRESIDENT SAMS	SYDNEY, 20 JUNE 2017

Application for termination of the Field Marketing Project Employees Agreement.

[1] This is an application, filed on 5 April 2017, by Creative Field Marketing Pty Ltd (the ‘applicant’), pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of two identical Agreements, both entitled the Field Marketing Project Employees Agreement (AC305968 and AC305966) (the ‘Agreements’). The Agreements cover employees employed by the applicant, who perform ‘mystery shopping’ services to companies engaged in the retail industry. Relevantly, the Agreements passed their nominal expiry dates on 8 February 2012 and 2 April 2012 respectively. The application seeks to have the employment conditions of the relevant employees covered instead by the General Retail Award 2010, the Commercial Sales Award 2010 or the Clerks – Private Sector Award 2010, depending on the duties they perform. A number of employees will also be Award free.

[2] The relevant provisions of the Act governing applications of this kind, are set out 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 employees 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 is:

(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.

[3] In a statutory declaration accompanying the application (Form F24C), Mr Gerard Feehan, Managing Director put that the Awards provide for terms and conditions that are more beneficial to employees, including more predictable hours of work, applicable overtime rates, penalty rates as well as an increase in the piece rate for its Mystery Shoppers/Auditors (the applicant currently employees approximately 3,211 of these employees on a casual basis). Mr Feehan described the consultation process which had been taken by the Company to discuss the proposed change with its employees. Mr Feehan provided 13 emails and several written statements from employees all supporting termination of the Agreement. He also attached a copy of correspondence from one employee, who said that she felt she would be worse off under the new agreement as the imposition of penalty rates would impede the flexibility she requires. The Company responded to the employee by advising that it would enter into an Individual Flexibility Agreement to enable the flexibility to continue.

[4] In a hearing for the application on 24 April 2017, Ms A Koelmeyer, Solicitor appeared for the applicant with Ms J Beehag as well as Ms L Pascuzzo, Solicitor. Ms Koelmeyer submitted that all of the applicable statutory requirements for the termination of an expired agreement had been met and the Agreements should be terminated.

[5] Having considered the application, the accompanying statutory declaration, the views of the parties and the Agreements themselves, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreements. I have taken into account the views of the employees and the employer as well as the likely effect on both, which appears overwhelmingly positive. Accordingly, the Field Marketing Project Employees Agreement (bothAC305968 and AC305966) are terminated. Pursuant to s 227 of the Act and the request of the applicant, the termination is to take effect on and from the first full pay period after 1 July 2017.

DEPUTY PRESIDENT

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<Price code A, AC305966 AC305968 PR593921>