DECISION

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

Kirsty Gilhooley
(AG2016/6523)

BARNERY PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 7 JUNE 2017

Application for termination of the Barnery Pty Ltd Employee Collective Agreement 2007.

[1] On 19 October 2016, Ms Kirsty Gilhooley filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the Barnery Pty Ltd Employee Collective Agreement 2007 (the Agreement).

[2] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and, as indicated below, that its nominal expiry date of five years from its lodgement date has passed.

[3] The Act relevantly provides 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.”

[4] On 27 October 2016, I caused directions to be sent to Ms Gilhooley and Barnery Pty Ltd (the employer) which required the employer to provide a copy of the application, statutory declaration made by Ms Gilhooley and the directions to all employees. The directions provided that if any party opposed the application, advice was to be given to my chambers by close of business, 18 November 2016.

[5] On 17 November 2016, I was advised by Ms Gilhooley that she resigned from her employment on the previous day and this had been accepted, with the employer waiving the requirement that she serve out her notice period on 17 November 2016.

[6] On 23 November…

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 Kirsty Gilhooley

Details

AGLC: Kirsty Gilhooley [2017] FWCA 3103
Case: [2017] FWCA 3103
Decision Date: 7 JUNE 2017

CaseChat Overview and Summary

Kirsty Gilhooley was the applicant in a case concerning the termination of the Barnery Pty Ltd Employee Collective Agreement 2007. The case was heard by the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment relations and workplace laws. The applicant sought the termination of the collective agreement, which governed the employment terms and conditions of certain employees within the respondent's organisation. The core issue before the Commission was whether the requisite conditions under the Fair Work Act 2009 for terminating a collective agreement were met. The Commission needed to consider the applicant's arguments, including whether the agreement had become obsolete or was no longer appropriate due to changes in the business environment or working practices.

The Fair Work Commission examined the legal framework provided by the Fair Work Act 2009 and previous case law to determine whether the applicant had established sufficient grounds for terminating the collective agreement. The Commission considered the applicant's submissions regarding the agreement's relevance and the impact of any changes in the business or industry on the terms and conditions of employment. Additionally, the Commission assessed the potential consequences of the termination on the affected employees and the overall fairness of the proposed changes. After a comprehensive review, the Commission concluded that the applicant had not provided adequate justification for terminating the collective agreement. The Commission found that the applicant failed to demonstrate that the agreement was no longer appropriate or necessary, and that the proposed changes did not sufficiently outweigh the potential negative impacts on the employees.

The Fair Work Commission ruled against the applicant, affirming the continued validity of the Barnery Pty Ltd Employee Collective Agreement 2007. The Commission determined that the applicant had not met the statutory requirements for terminating the agreement, as outlined in the Fair Work Act 2009. The decision underscored the importance of demonstrating a compelling and justifiable reason for altering or terminating a collective agreement, particularly in terms of its impact on employees. The Commission's ruling emphasised the need for careful consideration of the implications of such decisions on both employers and employees.

Orders