Dee Why Sales Pty Ltd T/A Eyes Right Optical

[2014] FWCA 844

[2014] FWCA 844

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Dee Why Sales Pty Ltd T/A Eyes Right Optical
(AG2013/12909)

EYES RIGHT OPTICAL COLLECTIVE AGREEMENT (2008)

Retail industry

COMMISSIONER BULL

SYDNEY, 12 FEBRUARY 2014

Application for termination of the Eyes Right Optical Collective Agreement (2008).

[1] An application has been made by Dee Why Sales Pty Ltd T/A Eyes Right Optical (the Applicant) pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Eyes Right Optical Collective Agreement (2008) (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as per Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

[3] Schedule 3, Item 16(1) of the Transitional Act states:

Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[4] Section 225 of the Act states:

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 FWA 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.

[5] The Applicant, being the employer covered by the Agreement, has the necessary standing to bring the application. The Agreement has passed its nominal expiry date.

[6] Section 226 of the Act sets out the requirements to be met before the Commission can terminate an agreement where an application is made under s.225.

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[7] On 21 January 2014, correspondence was sent to the Applicant requesting further correspondence with respect to s.226 of the Act. In particular, the Applicant was requested to address the public interest, the views of the employees and the circumstances of the employees, including the likely effect the termination of this Agreement would have on each of them.

[8] On 28 January 2014, the Applicant sent correspondence with respect to the Commission’s request for further information.

[9] Upon review of the correspondence, the Commission held a conference via telephone with the Applicant.

[10] A conference was held on 10 February 2014. Attending the conference by telephone was the Applicant’s Managing Director, Ms Wymond, its representative, Ms Birley, an external Human Resources Consultant and four employees who are covered by the Agreement.

[11] In its correspondence and during the conference, the Applicant stated that it had spoken to the employees with respect to the application and confirmed that 17 employees are covered by the Agreement.

[12] The Applicant has advised the Commission that since the nominal Agreement expiry the employees have been engaged on common law contracts of employment. Upon request from the Commission a copy of each of these contracts of employment were provided outlining the terms and conditions of employment for each of the 17 employees covered by the Agreement.

[13] The Applicant confirmed that it has spoken to each of the employees individually about the process relating the application and that various training sessions had been held to explain the terms and conditions of employment. No objection from any employee was raised.

[14] During the training sessions the employees were advised that in addition to their contract of employment it would be underpinned by the relevant modern award being either the Commercial Sales Award 2010 or the Clerks - Private Sector Award 2010 and the National Employment Standards. A copy of the relevant modern award the National Employment Standards were provided to employees.

[15] During the conference the Applicant stated that it had compared the rates of pay under each contract of employment to the relevant modern award to ensure that each employee would not receive less than the entitlement under the award.

[16] I note that there are no employee organisations that are covered by the Agreement.

[17] Taking into consideration the process that was followed by the Applicant in explaining the application and process to the employees and that no objection from the employees has been raised and the views of the Applicant, I am satisfied that the requirements of s.226 of the Act have been met including that termination of the Agreement is not contrary to the public interest.

[18] The application to terminate the Agreement is approved.

[19] In accordance with s.227 of the Act, the Agreement is terminated with effect from the date of this decision.

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