IGA Maiden Gully Pty Ltd
[2022] FWCA 2570
•2 AUGUST 2022
| [2022] FWCA 2570 |
| 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
IGA Maiden Gully Pty Ltd
(AG2022/1585)
IGA Maiden Gully Pty Ltd Collective Agreement 2007
| Retail industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 2 AUGUST 2022 |
Application for termination of the IGA Maiden Gully Pty Ltd Collective Agreement 2007
This decision concerns an application by IGA Maiden Gully Pty Ltd to terminate the IGA Maiden Gully Pty Ltd Collective Agreement 2007[1] (agreement) pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).
The agreement was approved under the Workplace Relations Act 1996 (Cth). It is a collective agreement‑based transitional instrument within the meaning of sub-item 2(5) of Schedule 3 of the Transitional Act and is therefore capable of consideration as an “agreement” under s 225 of the Fair Work Act 2009 (Cth) (Act).[2] The agreement nominally expired on 30 April 2012[3] and there is no union party to it.[4]
For the reasons that follow, the agreement is terminated.
Consideration
As noted, the agreement reached its nominal expiry date on 30 April 2012.[5] IGA Maiden Gully has standing to make the application for the termination of the agreement as it was the employer covered by the agreement as at the date the application was lodged with the Commission. Accordingly, the jurisdictional prerequisites for the making of the application are satisfied.
The substantive criteria for the termination application are contained in s 226 of the Act. Section 226 of the Act provides:
“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.”
Section 226(a) – Public interest
The notion of public interest refers to matters that might affect the public as a whole, as distinct from the interests of the parties.[6] In the context of s 226 of the Act, public interest considerations are directed to the consequences of terminating the agreement and particularly those consequences which are likely foreseeable.[7] The question is whether the Commission is satisfied that termination of the agreement is not contrary to the public interest.
There is nothing before me which raises public interest considerations that might militate against termination of the agreement.
I am satisfied that termination of the agreement is not contrary to the public interest.
Section 226(b) – appropriateness of terminating the agreement
IGA Maiden Gully seeks the termination of the agreement. It says that this will assist it by keeping the business sustainable and operative, while ensuring compliance with the National Employment Standards. It will also enable it to upgrade to a rostering and time management system which is “GRIA pre-configured,” supporting compliance with employee terms and conditions of employment.[8]
The effect of terminating the agreement will be that the General Retail Industry Award 2020 (GRIA) will cover and apply to the relevant employees.[9] IGA Maiden Gully filed a comparison table of the GRIA against the agreement.[10] Upon reviewing the GRIA and the terms of the agreement, I am satisfied that the comparison table contains a summary of key differences in employee entitlements under the respective instruments. Relevantly, the comparison table discloses that the agreement:
(a) contains the same base rate of rate of pay as the GRIA;[11]
(b) has reduced penalty rates for all employees for work performed on weekends;
(c) has reduced public holiday penalty rates for all employees for work performed on a public holiday;
(d) has reduced overtime rates;
(e) does not contain protective mechanisms in respect of part time employees’ hours of work;
(f) does not provide overtime rates for part time employees working less than 32 hours per week;
(g) contains a reduced minimum engagement for casual employees;
(h) provides a reduced casual loading;
(i) contains no express individual flexibility mechanisms;
(j) sets no fixed spread of ordinary hours;
(k) provides no roster change notification mechanism;
(l) contains no provision limiting the maximum number of hours an employee may work in a day;
(m) contains generally less rest and meal breaks for various shift lengths.
In these circumstances, I accept that the termination of the agreement would have a beneficial impact on the terms and conditions applicable to the relevant employees.
In accordance with the Commission’s directions, IGA Maiden Gully provided to the relevant employees a copy of the application and related documents. Employees were invited to provide any views to the Commission and an email address was provided for this purpose. While no employee views were received by the Commission, I note that IGA Maiden Gully, according to the declaration that accompanied the application, has taken the following steps to consult with its employees about this application:[12]
From 11 August 2021 the Applicant undertook a comprehensive consultative process prior to lodging this Application by:
a. giving written notice to the affected employees (and their representatives) and posted on an electronic/notice board such notice of its intention to terminate the Agreement;
b. conducting a formal staff meeting on 11 August 2021 where the following was discussed with the affected employees (and their representatives):
i. the introduction of the change,
ii. the likely effect of the termination on them,
iii. measures to avoid or reduce the adverse effects of the changes on them,
iv. by way of PowerPoint presentation to formally notify about the proposed termination of the Agreement and migration to the GRIA,
v. by way of PowerPoint presentation to show the main differences between the Agreement and the GRIA so that they can understand how their terms and conditions might be affected, and
vi. by providing an example to each individual employee of how they will be financially better off overall under the GRIA in comparison to the Agreement;
c. having an independent third-party minute taker and witness;
d. directing them to where they could find a copy of the GRIA;
e. offering them an opportunity during the consultation process and for a period of eight days after to provide their views (in writing) to influence the outcome;
f. promptly considering the limited concerns that were presented and any matters raised by the affected employees and their representatives about the termination; and
g. providing the affected employees (and their representatives) a written outcome of the final verdict, this Form (F24C), and Form F28.
Accordingly, I am satisfied that the relevant employees have had an opportunity to express their views in respect of the proposed termination and have their queries addressed.
Taking into account all of the circumstances including those in s 226(b) of the Act, I consider that it is appropriate to terminate the agreement.
Operative date
In order to ensure that it can successfully implement the GRIA in its business, IGA Maiden Gully seeks an effective date of termination which commences from the first full pay period four weeks after the date of any termination decision. It submits that this will enable alteration to payroll systems and other workplace arrangements to ensure compliance with the GRIA.[13]
I am satisfied in the circumstances that it is reasonable to give IGA Maiden Gully a four-week period to transition to the GRIA.
Conclusion and disposition
As I have concluded that it is not contrary to the public interest to terminate the agreement, and that it is appropriate to do so taking into account all the circumstances, I must terminate the agreement.
Accordingly, the agreement is terminated. Pursuant to s 227 of the Act, the termination will operate from the first full pay period after 31 August 2022.
DEPUTY PRESIDENT
[1] AC306624; CAEN072297971
[2] Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3, Pt 3, sub-item (16)
[3] IGA Maiden Gully Pty Ltd Collective Agreement 2007 cl 4; Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (F24C) at 1.3
[4] IGA Maiden Gully Pty Ltd Collective Agreement 2007 cl 3
[5] IGA Maiden Gully Pty Ltd Collective Agreement 2007 cl 4
[6] Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 (Kellogg Brown) at p.40; see also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 (Aurizon) at [153]
[7] Kellogg Brown at p.41
[8] F24C 2.1 at [5]
[9] F24C 2.1 at [4]
[10] F24C, Annexure A at 7-9
[11] IGA Maiden Gully Pty Ltd Collective Agreement 2007 cl 8; F24C – Annexure B
[12] F24C 2.3 at [3]
[13] F24C 2.3 at [7]-[10]
Printed by authority of the Commonwealth Government Printer
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