IGA Maiden Gully Pty Ltd - [2022] FWCA 2570

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading IGA Maiden Gully Pty Ltd

Details

AGLC: IGA Maiden Gully Pty Ltd [2022] FWCA 2570
Case: [2022] FWCA 2570
Decision Date: 2 AUGUST 2022

CaseChat Overview and Summary

IGA Maiden Gully Pty Ltd, the applicant, sought the termination of the IGA Maiden Gully Pty Ltd Collective Agreement 2007, which governed the employment of their retail workers. The Fair Work Commission was tasked with determining whether the conditions of the agreement were still suitable and if the application met the criteria under section 237 of the Fair Work Act 2009. The Commission examined the application to see if it complied with the procedural requirements and if the reasons provided for the termination were valid.

The primary legal issues before the Commission were whether the application was made in accordance with the statutory provisions and whether the reasons provided for seeking termination were sufficient. The Commission had to assess the procedural correctness of the application, including whether the applicant had complied with the notice requirements and if the application was made in good faith. Additionally, the Commission needed to consider the substantive reasons for the termination, specifically if the agreement's terms were no longer appropriate for the business or the workforce.

The Fair Work Commission concluded that the application was procedurally sound and had been made in good faith. The Commission found that the applicant had adequately demonstrated that the terms of the agreement were no longer suitable for the business environment and workforce needs. The Commission emphasised the importance of flexibility in employment agreements to adapt to changing business circumstances. Consequently, the Commission decided that the application should be approved, and the collective agreement terminated. The decision was made with consideration of the need for an adaptable workforce agreement that aligns with the evolving demands of the retail industry.

Orders