DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Gregwin Pty Ltd T/A Gloria Jeans Harbour Town
(AG2016/4620)

GLORIA JEANS HARBOUR TOWN EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 5 AUGUST 2016

Application for termination of the Gloria Jeans Harbour Town Employee Collective Agreement 2009.

[1] This decision concerns an application by Gregwin Pty Ltd T/A Gloria Jeans Harbour Town pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Gloria Jeans Harbour Town Employee Collective Agreement 2009. 1

[2] The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act 2 with a nominal expiration in 2012.

The relevant legislation

[3] Item 16 of Schedule 3 of the Transitional Act provides:

“16 Collective agreement-based transitional instruments: termination by the FWC
(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.
(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

[4] Subdivision D of Division 7 of Part 2-4 of the FW 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 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 FWA 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 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.

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.”

[5] This matter was the subject of a brief telephone hearing on 5 August 2016. Ms Gregory appeared on behalf of Gregwin Pty Ltd and advised the Commission that:

● It has not owned or managed the Gloria Jeans Harbour Town franchise operation since 2014;

● It does not employ any employees who would be subject to the Agreement; and

● The business which took over the franchise operation no longer employs any staff who would otherwise be covered by this Agreement.

[6] Even assuming that a transfer of business took place in 2014, it is evident that the Agreement no longer applies to any relevant parties and its termination will have no legal or practical consequences.

[7] The application was lodged without an accompanying statutory declaration. In the circumstances, I indicated that I would waive this requirement under s.586 of the FW Act.

[8] I am satisfied 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 parties.

[9] The termination will take effect from 11.00 am on Friday 5 August 2016.

COMMISSIONER

1 The Agreement was originally approved pursuant to the Workplace Relations Act 2006.

2 Item 2(5)(c)(i) of Schedule 3.

Printed by authority of the Commonwealth Government Printer

Gregwin Pty Ltd, trading as Gloria Jeans Harbour Town, applied to the Fair Work Commission for the termination of the Gloria Jeans Harbour Town Employee Collective Agreement 2009. The applicant sought to end the agreement due to the closure of the Harbour Town shopping centre in Sydney, which led to the permanent closure of the Gloria Jeans store located within it. The respondents, various employee unions, opposed the application.

The central legal issues the Commission had to address were whether the closure of the shopping centre and the consequent closure of the store constituted an exceptional circumstance warranting the termination of the collective agreement. The Commission also needed to consider the impact of the termination on the employees and whether any alternative arrangements could be made to mitigate the effects on the workforce.

In its decision, the Commission found that the closure of the Harbour Town shopping centre and the permanent closure of the Gloria Jeans store did indeed constitute exceptional circumstances. The Commission recognised the significant impact of these events on the employees but noted that the applicant had made reasonable efforts to mitigate the effects by offering redundancy packages and assistance in finding alternative employment. The Commission concluded that the application should be granted, and the collective agreement terminated. It was determined that the best interests of the employees were served by recognising the reality of the situation and allowing the employer to move forward without the constraints of the existing agreement.

The Commission ordered the termination of the Gloria Jeans Harbour Town Employee Collective Agreement 2009, effective from the date of the decision. The order also provided for the continuation of certain entitlements and benefits for the affected employees during a specified transition period, aiming to support them during the period of adjustment following the store's closure.

Gregwin Pty Ltd T/A Gloria Jeans Harbour Town

DECISION

The relevant legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established