Employee X

[2019] FWCA 3736

[2019] FWCA 3736

The attached document replaces the document previously issued with the above code on 30 May 2019.

The ‘Conclusion’ heading has been corrected.

Edrea Venal

Associate to Senior Deputy President Hamberger

Dated 31 May 2019

[2019] FWCA 3736

FAIR WORK COMMISSION

DECISION

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

Employee X
(AG2019/625)

TUNBAC NATIONAL PTY LTD COLLECTIVE AGREEMENT NUMBER ONE (2007)

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 30 MAY 2019

Termination of the Tunbac National Pty Ltd Collective Agreement Number One (2007).

[1] On 8 March 2019 an application was filed with the Fair Work Commission (the Commission) for the termination of the Tunbac National Pty Ltd Collective Agreement Number One (2007) (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] The applicant was described thus: ‘Employee X [name and details to be provided to the Fair Work Commission only on the request of the Fair Work Commission and/or Employer]’. The applicant was represented by the Shop, Distributive and Allied Employees’ Association (SDA).

[3] I listed the matter for a mention, during the course of which I directed the applicant to provide a statutory declaration confirming that she or he is an employee covered by the Agreement. I directed Tunbac National Pty Ltd (the employer) to provide a list of all employees covered by the Agreement. Both of these documents were provided to me in confidence.

[4] On the basis of this material I am satisfied that the applicant is an employee covered by the Agreement and that a valid application has been made.

[5] Both the SDA and the employer advised that they were content for me to determine the application on the papers.

The legislation

[6] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) 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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[7] 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.”

[8] 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.”

Consideration

[9] The Agreement is entitled ‘2007’ however the SDA states that a watermark on the document dates it as 31 March 2009.¹ It is not in contest that the Agreement is well beyond its nominal expiry date.

[10] The employer does not oppose the termination of the Agreement, with a transition period, 2 and no opposition to application was received from or on behalf of any parties.

[11] Employee X supports the termination of the Agreement; the employer ‘does not contest that the termination of the Agreement will result in improved terms and conditions of employment’ for the employees. 3

[12] The Agreement covers 78 employees working at retail stores in 24 separate locations in South Australia and the Northern Territory. 4

[13] The employer has provided witness statements from Bisan Shahin (Human Resources and Retail Buyer), and Michaelle Luijckx (Finance Admin/Executive Assistance) which outline the complexity of the changes the employer faces in transitioning from the Agreement to the General Retail Industry Award 2010 (the Award).

Conclusion

[14] The Agreement is old and the employees will be considerably better off under the Award. 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.

[15] It is reasonable to give the employer some time to adjust their pay roll and rostering systems to accommodate the requirements of the Award, and for attendant consultation and training. The termination will therefore come into effect from the first pay period on or after 10 July 2019.

SENIOR DEPUTY PRESIDENT

1 SDA submissions [5].

 2 Employer submissions [12].

 3 Ibid [9].

 4   Ibid [5] and [15].

Printed by authority of the Commonwealth Government Printer

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