Koorong Books Pty Limited trading as Koorong

[2018] FWCA 4100

[2018] FWCA 4100

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Koorong Books Pty Limited trading as Koorong
(AG2018/2750)

KOORONG BOOKS PTY LTD EMPLOYEE COLLECTIVE AGREEMENT WESTERN AUSTRALIA JUNE 2009

Retail industry
DEPUTY PRESIDENT BINET	PERTH, 2 AUGUST 2018

Application for termination of the Koorong Books Pty Limited, Employee Collective Agreement, Western Australia.

[1] Koorong Books Pty Ltd trading as Koorong (Koorong) has made an application (Application) to the Fair Work Commission (FWC) pursuant to Schedule 3 Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Koorong Books Pty Ltd Employee Collective Agreement Western Australia (Agreement).

[2] The parties to the Agreement are Koorong and its employees working in the State of Western Australia (Employees).

[3] There are no employee organisations covered by the Agreement.

[4] The Agreement has a nominal expiry date of 25 September 2014.

[5] The relevant reference award is the General Retail Industry Award 2010 (Award)

[6] Directions were issued on 27 June 2018 inviting Koorong to file submissions in relation to the Application (Directions). Inter alia the Directions required Koorong to file evidence as to whether Employees are better off overall under the Award than the Agreement (including a comparison table settling out all the terms which differ) and which if any employees may not be better off overall.

[7] On 5 July 2018, Koorong filed submissions in support of the Application and a copy of the notice issued by the former Workplace Authority advising the Agreement met the No Disadvantage test.

[8] The Directions also required Koorong to provide a copy of the Application, the Statutory Declaration filed in support of the Application, Koorong’s submissions and the Directions to all Employees.

[9] On 21 June 2018, Koorong filed a Statutory Declaration stating that the Directions had been complied with.

[10] The Directions invited any of the Employees who wished to be heard in relation to the Application to contact Chambers by 12 July 2018. No written correspondence has been received from any Employee as at the date of this decision.

Legislative Framework

[11] For the purposes of Schedule 3, Item 16 of the Transitional Act, the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act, the Agreement may be terminated pursuant to sections 225 and 226 of the Fair Work Act 2009 (FW Act).

[12] Section 225 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.”

[13] Section 226 of the FW Act states:

“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.”

Consideration

[14] As the Agreement has passed its nominal expiry date and Koorong is an employer covered by the Agreement, I find that Koorong has standing to make the Application pursuant to section 225(a) of the FW Act.

[15] Koorong submit that it is not contrary to the public interest to terminate the Agreement because the result would be that its Western Australian workforce would be covered by the Award as is the case with its employees elsewhere in Australia.

[16] If the Agreement is terminated, Employees will instead be covered by the General Retail Industry Award 2010 (Award).

[17] Koorong submit that the rates of pay contained in the Agreement have fallen below the ordinary rates of pay contained in the Award and that the Employees (with the exception of three junior employees employed in the café at the Mount Lawley premises would be better off overall under the Award.

[18] Koorong submit that only three junior employees employed in the café are currently entitled to a higher base hourly rate of pay under the Agreement as opposed to the Award. In the event that the Agreement is terminated, Koorong have undertaken to pay these employees at the Award rate of pay for the next older age group effective from 1 July 2018 to ensure that these employees are not disadvantaged as a consequence of the Agreement being terminated.

[19] Based on the materials filed by Koorong, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[20] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[21] The termination will come into effect from 2 August 2018.

DEPUTY PRESIDENT

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<AC327565  PR608904>