Duty Free Stores Australia Pty Ltd (DFSA)

[2022] FWCA 217

[2022] FWCA 217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Duty Free Stores Australia Pty Ltd (DFSA)

(AG2021/9319)

Duty Free QLD Stores Enterprise Agreement - 2013

Retail industry
COMMISSIONER HUNT	BRISBANE, 27 JANUARY 2022

Application for termination of the Duty Free QLD Stores Enterprise Agreement - 2013

1. On 24 December 2021, Duty Free Stores Australia Pty Ltd (DFSA) (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Duty Free QLD Stores Enterprise Agreement - 2013 (the Agreement). The Agreement has passed its nominal expiry date.

1. The application was supported by a Form F24C statutory declaration of Ms Tiffany Hunt, Chief Human Resource Officer, Pacific, Lagardère Travel Retail, which declared, amongst other things, the Employer’s view that employee rights and entitlements will revert to the General Retail Industry Award 2020 (Award) which contains generally comparable and in some instances more beneficial entitlements. Further, the Award has been reviewed and updated over the years to include greater flexibilities and protections for employees. Ms Hunt declared that there are five employees covered by the agreement, with one employee being employed on a part-time basis and the remaining four being employed on a casual basis.

1. The Employer provided copies of correspondence sent to employees in December 2021, advising them that it intended to seek termination of the Agreement, and their conditions will be honoured by way of a common law contract.

1. On 5 January 2022, I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 13 January 2022, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 21 January 2022.

Termination of an enterprise agreement after its nominal expiry date

1. 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

1. Based on the material contained in the statutory declaration of Ms Hunt, 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.

1. As earlier noted, there are five 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.

1. I have had regard to the comparison summary provided by the Employer to employees covered by the Agreement on 17 December 2021, detailing the differences between the employees’ wages and conditions under the Agreement and the Award, and what would apply if the Agreement is terminated. I am satisfied employees will be in a better position if the Agreement is terminated.

1. 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.

1. In accordance with s.226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from today, 27 January 2022.

COMMISSIONER

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