Gibson Importing Co (Aust) P/L

[2014] FWCA 2117

[2014] FWCA 2117

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

Gibson Importing Co (Aust) P/L
(AG2014/3846)

GIBSON IMPORTING COMPANY (AUST) PTY. LTD. CERTIFIED AGREEMENT 2006

Retail industry

COMMISSIONER BULL

SYDNEY, 2 APRIL 2014

Application for termination of the Gibson Importing Company (Aust) Pty. Ltd. Certified Agreement 2006.

[1] An application has been made by Gibson Importing Co (Aust) P/L (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 Gibson Importing Company (Aust) Pty. Ltd. Certified Agreement 2006 (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 being 1 July 2011.

[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] Attached to the application was a copy of a letter sent to each employee covered by the Agreement. The letter stated the Applicant’s intention to apply to the Commission for the termination of the Agreement and to revert back to modern awards.

[8] The letter stated that the Applicant undertakes to retain the terms and conditions present in the Agreement for all current employees and that any future employees would be covered by the Storage Services and Wholesale Award 2010 (the Award).

[9] The employees were asked to sign a ‘consent form’ that was attached to the letter if they supported the termination of the Agreement. A signed copy of the ‘consent forms’ were attached to the application.

[10] On 12 March 2014, correspondence was sent to the Applicant requesting further information 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 termination of the Agreement would have on each of them.

[11] Correspondence was received from the Applicant on 17 and 26 March 2014, with respect to the Commission’s request for further information.

[12] The correspondence received on 17 March 2014, was accompanied by a statutory declaration made by Mr Jamie Moir, Managing Director of the Applicant.

[13] Mr Moir states that the Applicant would prefer a simpler legislative award based remuneration system rather than continuing to refer to out dated and uncommercial certified agreements.

[14] Mr Moir submits that employees were consulted in groups and the reasons for the application to terminate the Agreement were highlighted. Prior to the discussions with employees, Mr Moir states that it was decided that current employees would retain their existing terms under the Agreement and that any new employees would revert to the Award.

[15] In his statutory declaration Mr Moir made a number of statements that appeared to be inaccurate with respect to the legislation. Mr Moir made a second statutory declaration dated 24 March 2014, in which he acknowledged those inaccuracies.

[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.

COMMISSIONER

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