Gerard McCabe Jewellers Pty Ltd

[2017] FWCA 4156

[2017] FWCA 4156

FAIR WORK COMMISSION

DECISION

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

Gerard McCabe Jewellers Pty Ltd
(AG2017/3050)

GERARD MCCABE JEWELLERS ENTERPRISE AGREEMENT 2010

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 9 AUGUST 2017

Application for termination of the Gerard McCabe Jewellers Enterprise Agreement 2010.

[1] This decision concerns an application by Gerard McCabe Jewellers Pty Ltd pursuant to s.225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Gerard McCabe Jewellers Enterprise Agreement 2010. 1The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 26 December 2014.

[2] The Act relevantly 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.

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.”

[3] This matter was the subject of a hearing by telephone on 9 August 2017 at which time I heard from Mr Sawley, General Manager, and Ms Agostino, Payroll Officer who spoke on behalf applicant employer. During the course of the hearing, Mr Sawley further explained the steps taken to seek employee perspectives on the proposed termination and the consequences of such termination in relation to the terms and conditions of employment. In that regard, I note that a Statutory Declaration accompanying the application, and a statement supporting the termination, also provided evidence about these matters.

[4] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement support its termination. 2

[5] The employment of those employees will fall back to the coverage and application of the relevant modern award, being the General Retail Award 2010. That modern award is a more contemporary instrument than the present agreement and will in this case provide appropriate terms and conditions for the enterprise and employees concerned. In that regard, I note that the trading and working hours assumptions underpinning the Agreement are no longer valid.

[6] An undertaking has been given to the Commission and the employees that the employer will continue to use adjusted hourly rates, which are higher than that of the modern award, to ensure that the employees are not disadvantaged by falling back to that award.

[7] I am satisfied having heard from Mr Sawley, and accepting the undertaking given on transcript, that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[8] The termination will take effect from midnight, 15 August 2017.

COMMISSIONER

 1   AE883065.

 2   A notice of listing was issued by the FWC with a direction that it be made available to all relevant employees and this listing invited employees with concerns to contact the Commission. No concerns have been raised.

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<Price code A, AE883065  PR595223>