Eliza Marsh

[2016] FWC 8964

[2016] FWC 8964

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

Eliza Marsh
(AG2016/6868)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 DECEMBER 2016

Application for termination of the Bakers Delight Holdings Ltd Collective Agreement (Victoria) 2006.

[1] On 4 November 2016, Ms Eliza Marsh filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Bakers Delight Holdings Ltd Collective Agreement (Victoria) 2006 (the Agreement).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date of at least three years from its lodgement date has passed.

[3] On 10 November 2016, I caused Directions to be sent to Ms Marsh and the employer (Bakers Delight Holdings Ltd (ABN 88052 528 202)) (Bakers Delight) in order to ascertain if any party, including any employee covered by the Agreement, objected to the application.

[4] On 17 November 2016, Bakers Delight’s representative raised a jurisdictional objection to the application. It said as at the date of the application, Ms Marsh was not an employee and therefore does not have standing to bring the application under s.225 of the Act. Bakers Delight’s representative later requested an opportunity to appear before the Fair Work Commission to make submissions on the jurisdictional objection.

[5] On 21 November 2016, I vacated the Directions of 10 November 2016 and issued further Directions for material to be filed in relation to the jurisdictional objection. I also set the matter down for jurisdiction hearing on 12 December 2016.

[6] In accordance with the Directions, Mr Bradley Marsh, Ms Marsh’s father and representative, filed submissions and Bakers Delight filed submissions and witness statements of Ms Olivia Gheller, Ms Rachel Goldstein and Ms Renee Dowley. Subsequent to the filing of material, correspondence passing between the representatives for the parties and my chambers established that neither party required the witnesses of the other party to be present for cross-examination at the hearing. On that basis, I sought and obtained consent of both parties to determine the jurisdictional objection based on the material filed, having granted Bakers Delight permission to file a brief written reply to Ms Marsh’s material.

Facts

[7] It is not contested that at 7.21pm on 1 November 2016, Ms Marsh sent the following email to Bakers Delight (Ms Marsh’s email):

“Dear Olivia,

This email is to advise you of my resignation from Bakers Delight. I have enjoyed my time working here and I’m thankful for the opportunity I was given.

I note that I have a shift next Tuesday and I would appreciate it if you could find someone to fill this shift for me, but will work it if you need me to.

I think that during my time with Bakers Delight I have proven to be hard working, reliable and possessing good customer relations skills and I would appreciate a reference from Bakers Delight.

Thank you and best wishes for the future.

Eliza Marsh.”

[8] It is also not contested that at 8.32pm on 2 November 2016, Ms Olivia Gheller, Bakery Manager, responded to Ms Marsh as follows (Ms Gheller’s email):

“Hi Eliza,

Thank you for letting me know. I will find someone to cover your shift Tuesday.

Kind Regards,

Olivia Gheller”

[9] Clause 45 of the Agreement, Notice of Termination, relevantly provides the following:

“45.2 Permanent Employees

(a) Except in cases of Misconduct, either party (except casual Employees, apprentices, trainees, or Employees appointed for a specific period of time or for a specific task) shall provide the following periods of notice on termination:

Employee period of service	Period of notice
Not more than 1 year	1 week
More than 1 year but not more that (sic) 3 years	2 weeks
More than 3 years but not more than 5 years	3 weeks
More than 5 years	4 weeks

…

(c) By agreement between the Employer and the Employee, the period of notice required by an Employee may be shorter than those periods outlined in Sub-clause (a) above.

(d) Unless otherwise agreed, if the Employee does not give the Employer the correct notice, the Employer may withhold an amount equivalent to the Employee’s Ordinary Rate of Pay for the balance of the correct notice from the Employee’s accrued entitlements or may recover that amount by way of separate legal proceedings.

(e) The Employer may make payment in lieu of all or part of the notice period.

…”

[10] Clause 27 of the Agreement, Rosters & Roster Changes, provides:

“…

27.2 Employees will be given 7 days’ notice of any changes to the times at which they will be rostered to work…

27.3 Notwithstanding Clause 27.2, roster changes may be made at any time by mutual agreement.

…”

[11] It is agreed that during her employment, Ms Marsh was employed on a permanent part-time basis for not more than one year.

Submissions of the Applicant

[12] Mr Marsh submitted that Ms Marsh did not offer or agree to reduce the notice period and therefore clause 45.2(c) of the Agreement was not invoked.

[13] Mr Marsh submitted Ms Marsh’s email sought agreement to a roster change as per clause 27.3 of the Agreement, but was committed to work if that was denied. Mr Marsh said Ms Marsh interpreted Ms Gheller’s email as acceptance of the roster change allowed for by clause 27.3 of the Agreement, which is what she had offered.

[14] He said Ms Marsh’s employment ceased seven days after she gave notice, being 8 November 2016.

[15] I have noted that Mr Marsh also made additional submissions that went beyond the jurisdictional issue, but I am only required to consider these if I do not uphold the jurisdictional objection of Bakers Delight.

Submissions of the Employer

[16] Bakers Delight’s submitted that as at the date the application was filed, Ms Marsh was not an employee covered by the Agreement (s.225(b) of the Act) and therefore does not have standing to make the application. It said Ms Marsh’s employment ended on either 1 or 2 November 2016 but that it was not necessary to resolve that issue because whichever is correct, Ms Marsh was not an employee as at 4 November 2016, the date the application was filed.

[17] Bakers Delight submitted that the correct interpretation of Ms Marsh’s email is that she wanted her employment to end immediately and not be required to fulfil the notice period, however, she recognised there was a legal requirement under the Agreement to give one week notice, and indicated that she was prepared to fulfil that obligation if Bakers Delight so required.

[18] Bakers Delight submitted Ms Gheller’s email is evidence of both the employer accepting Ms Marsh’s resignation with immediate effect and agreement to not requiring her to work her shift on 8 November 2016. It was submitted that there was an agreement under clause 45.2(c) that Ms Marsh would not be required to fulfil the notice period under clause 45.2(a) of the Agreement and that her employment was at an end no later than 2 November 2016.

[19] Ms Gheller stated given her email said she would find someone to cover Ms Marsh’s shift on Tuesday (8 November 2016), she was agreeing to Ms Marsh finishing her employment immediately and there was no possibility she would have called on Ms Marsh to work on 8 November 2016 or any other shift after her resignation.

Consideration

[20] The Act provides 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.”

[21] I am satisfied Ms Marsh gave notice of her resignation on 1 November 2016 and this was accepted by Bakers Delight on 2 November 2016, with effect either on 1 or 2 November 2016.

[22] Ms Marsh’s email evinces an intention to bring the employment relationship to an end immediately, subject to Bakers Delight agreeing to have her final shift covered. Through Ms Gheller’s email, Bakers Delight agreed to bring the employment to an end with no requirement for Ms Marsh to serve the notice period, as it was going to find someone to cover the final shift on Tuesday 8 November 2016.

[23] I am not required to make a finding as to which of 1 or 2 November 2016 was the date the employment ceased, as I am satisfied that with both those dates being prior to when the application was made on 4 November 2016, Ms Marsh’s employment had ended and she was no longer an employee at the time of making the application.

[24] I am not persuaded that through her email dated 1 November 2016, Ms Marsh was seeking agreement for a roster change as per clause 27.3 of the Agreement. Ms Marsh did not request an alternate shift to her 8 November 2016 rostered shift. Her email clearly evinced the intention to finish immediately, should she not be required to work on 8 November 2016.

[25] My findings in paragraphs [21] to [24] satisfy me that at the time of making the application, Ms Marsh was not an employee covered by the Agreement and does not have standing to bring the application. The application was therefore not validly made and must be dismissed. An Order to this effect will be issued shortly.

[26] As I have upheld the jurisdictional objection raised by Bakers Delight, I am not required to make findings in relation to the submissions of Ms Marsh that went beyond it.

DEPUTY PRESIDENT

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