Lime 1 Pty Ltd
[2015] FWCA 3729
•16 JUNE 2015
| [2015] FWCA 3729 |
| 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
Lime 1 Pty Ltd
(AG2015/2698)
IGA VARSITY LAKES (THE RETAILERS ASSOCIATION) EMPLOYEE COLLECTIVE AGREEMENT 2009
Retail industry | |
COMMISSIONER SPENCER | BRISBANE, 16 JUNE 2015 |
Application for termination of the IGA Varsity Lakes (The Retailers Association) Employee Collective Agreement 2009.
[1] Lime 1 Pty Ltd (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the IGA Varsity Lakes (The Retailers Association) Employee Collective Agreement 2009 1 (the Agreement).
[2] Item 16 of Schedule 3 of the Transitional Act provides that:
“Collective agreement-based transitional instruments: termination by FWC
(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) 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.”
[3] Accordingly, the Commission must be satisfied that the requirements in s.225 and s.226 of the Act are met prior to approving the termination of the Agreement.
[4] Section 225 of the Act 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.
[5] The nominal expiry date of the Agreement is 7 July 2014. In April 2012, the Applicant purchased an IGA Supermarket in Varsity Lakes in Queensland. Pursuant to the transfer of business provisions in the Act, the Agreement (a transferable instrument) covered the Applicant in respect of its transferring employees. An Order was made by Justice Boulton, Senior Deputy President of the Fair Work Commission on 26 October 2012 2 that non-transferring employees would be covered by the Agreement. The Agreement has passed its nominal expiry date. The Applicant is the employer covered by the Agreement.
[6] Section 226 of the Act provides as follows:
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.
[7] In response to the application to terminate the Agreement, Directions were issued for the filing of material in reference to s.226 of the Act (set out above).
[8] The Applicant filed materials in accordance with these Directions.
Consideration
s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement;
[9] The Applicant submitted that as the Employer covered by the Agreement it was their view that the Agreement should be terminated.
[10] Mr Gordon Ward, Director of the Applicant, in an Affidavit sworn on 28 May 2015, stated that on 21 May 2015, he displayed a copy of the application, a copy of the Directions and a copy of the comparison of the Agreement wages with the General Retail Industry Award 2010 (the Award), on the staff notice board, which contains the roster and is viewed by staff on a daily basis. Mr Ward exhibited to his Affidavit copies of the documents placed on the Notice Board, on which Mr Ward handwrote to alert staff, requesting that they read the documents and contact himself or another named person if they had any questions.
[11] Mr Ward stated that no issue or questions had been raised by employees.
[12] Mr Ward stated that there are no employee organisations that need to be notified of the application.
s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
[13] The Applicant submitted that the termination of the Agreement would mean that the Award would apply to the employees of the Applicant.
[14] The Applicant provided a copy of the comparison table that was placed on the notice board.
[15] The document provided by the Applicant containing the comparison of wage rates under the Agreement and the Award indicated that, while some rates per hour would decrease, others would increase depending on the employee’s classification and on the days worked.
s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so
[16] Mr Ward stated that there was nothing within his knowledge that would be contrary to the public interest in the termination of the Agreement.
Conclusion
[17] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.
[18] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement. The employees will revert to the Award.
[19] The application was listed for hearing in Chambers on 15 June 2015. The Applicant was notified of the hearing and Directed to place a copy of the Notice of Listing on the notice board. The Notice of Listing invited employees to participate in the hearing. The Applicant provided a further Affidavit of Mr Ward, in which he stated that he had placed a copy of the Notice of Listing on the notice board, which contains the staff roster and is viewed by staff on a daily basis. No employees contacted Chambers in relation to attending the hearing.
[20] The Commission is satisfied that it is appropriate to terminate the Agreement in all the circumstances and having considered the views of the Applicant and the employees and the circumstances of the Applicant and the employees.
[21] Having considered the material and s.226 of the Act the Agreement must be terminated.
[22] The termination will operate from the date of this decision.
[23] I Order accordingly.
COMMISSIONER
1 AC327505
2 [2012] FWA 9115, PR530618
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