Illaton Pty Ltd atf The Ak Trust T/A Pomona IGA

[2022] FWCA 2045

[2022] FWCA 2045

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Illaton Pty Ltd atf The Ak Trust T/A Pomona IGA

(AG2022/1691)

Pomona IGA Employee Collective Agreement 2007

Retail industry
COMMISSIONER HUNT	BRISBANE, 22 JUNE 2022

Application for termination of the Pomona IGA Employee Collective Agreement 2007

1. On 31 May 2022, Illaton Pty Ltd atf The AK Trust T/A Pomona IGA (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to the Fair Work Commission (the Commission) to terminate the Pomona IGA Employee Collective Agreement 2007 (the Agreement. The Agreement has passed its nominal expiry date being 28 August 2012.

1. The application was supported by a Form F24C statutory declaration of Lisa Smith, HR Manager of the Employer, which declared, amongst other things, that the termination of the Agreement would result in employees covered by the Agreement being paid pursuant to the terms within the General Retail Industry Award 2020 (the Award).

1. The Employer submitted that terminating the Agreement will result in employees receiving more beneficial terms and conditions of employment under the Award, including, but not limited to, a higher casual loading, overtime rates, application of penalties, allowances and hours of work.

1. I directed the Employer to communicate in writing to each of the employees covered by the Agreement, inviting them to correspond by email with my chambers in the event they wished to provide their views. On 10 June 2022, I received confirmation from the Employer that it had complied with the above direction. The employees covered by the Agreement were invited to provide any views relevant to the application. I did not receive any correspondence from any of the employees to my chambers by 17 June 2022.

Legislative provisions

1. Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) 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.

1. Chapter 2, Part 204, Division 7, Subdivision D is 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.”

Conclusion

1. Based on the material contained in the statutory declaration of Ms Smith, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

1. In consideration of the material before me relevant to s.226(b)(i), I consider that it is appropriate to terminate the Agreement. None of the employees covered by the Agreement expressed any views opposing termination of the Agreement. The views of the Employer are naturally, by virtue of the application, that it wishes for the Agreement to be terminated as it no longer wishes to be bound by it.

1. Having regard to s.226(b)(ii), the terms of the Award will provide greater entitlements to employees, including casual loading, overtime rates, application of penalties, allowances and hours of work. I consider it appropriate to terminate the Agreement.

1. In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

1. Per s.227, if an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement. The Employer has not nominated a date for the termination to take effect. I consider it reasonable for the termination to take effect from today.

1. The termination will take effect from 22 June 2022.

COMMISSIONER

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