DECISION

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

Lisa Reynolds
(AG2017/5488)

GODFREYS EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 2 NOVEMBER 2018

Application for termination of the Godfreys Employee Collective Agreement 2009.

[1] Electrical Home-Aids Pty. Limited T/A Godfreys (Godfreys) conducts a business selling floor cleaning products, predominately vacuum cleaners and accessories. It has more than 220 stores throughout Australia and 312 of its employees are covered by the Godfreys Employee Collective Agreement 2009 (the Agreement).

[2] On 14 November 2017, an application (the Application) was filed pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Transitional Act) to terminate the Agreement.

[3] It is not in contention that the Application is made pursuant to s.225 of Fair Work Act 2009 (the Act) which applies by reason of Item 16 schedule 3 of the Transitional Act, where the Agreement is a collective agreement-based transitional instrument.

[4] The Application was filed by the Shop, Distributive and Allied Employees Association (SDA), however the Applicant was recorded as ‘Employee X’ and there was an accompanying statutory declaration made by Ms Julia Fox, National Assistant Secretary of the SDA together with a comparison document.

[5] On 4 December 2017, the then legal representative for Godfreys made an application that the matter be dismissed for want of jurisdiction on the basis that it is not an application made by a person with standing under s.225 of the Act. At a teleconference on 7 December 2017, I proposed that the challenge raised by Godfreys be determined by the SDA disclosing to my chambers the name of the Applicant and Godfreys providing me with a list of the employees of Godfreys. Having received this information, I could then identify whether or not the Applicant was a Godfreys employee. I advised Godfreys’s then legal representative that I proposed to disclose the name of the Applicant to them on the condition they not disclose the name to their client. On 20 December 2017, Godfreys filed submissions outlining its opposition to my proposal. I considered this but on 21 December 2017, I caused correspondence to be sent to the parties advising that I had determined to proceed with my proposed process.

[6] Following receipt of the material from the parties, on 5 January 2018 they were advised by email that a review satisfied me that the Application has been made by an employee covered by the Agreement. As Godfreys’s then legal representative had not provided an undertaking to keep the identity of the Applicant confidential, the identity of the Applicant was not disclosed to them. I then made Directions for the future conduct of the matter.

[7] On 9 January 2018, Godfreys filed an appeal against my interlocutory decision that the Fair Work Commission (the Commission) had jurisdiction to hear and determine the Application and the Directions I had…

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.

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Details

AGLC: Lisa Reynolds [2018] FWCA 6804
Case: [2018] FWCA 6804
Decision Date: 2 NOVEMBER 2018

CaseChat Overview and Summary

The application was brought by Godfreys, a company that had entered into an enterprise agreement with its employees, represented by a union. The union sought to terminate the Godfreys Employee Collective Agreement 2009, citing a significant change in the workforce, including a reduction in the number of employees and a shift in job roles. The matter was heard in the Fair Work Commission, which was tasked with deciding whether the union had grounds to terminate the agreement and whether Godfreys had acted in bad faith.

The primary legal issue was whether the changes in the workforce constituted a significant change in circumstances under the Fair Work Act, warranting the termination of the agreement. Additionally, the court needed to assess whether Godfreys had acted in bad faith by misrepresenting the nature of the changes, which could have influenced the union's decision to seek termination. The union argued that the changes in roles and responsibilities, along with the reduction in workforce, amounted to a significant change. Godfreys countered that the changes did not warrant termination and that the union had not demonstrated good faith in seeking to terminate the agreement.

The Fair Work Commission found that while there had been changes in the workforce, they did not constitute a significant change in circumstances that would justify the termination of the agreement. The Commission noted that the union had not provided sufficient evidence to support their claim of a significant change. Furthermore, the Commission concluded that Godfreys had not acted in bad faith. The evidence did not support the union's assertion that Godfreys had misrepresented the nature of the changes. As such, the application to terminate the agreement was dismissed.

The Fair Work Commission ordered that the Godfreys Employee Collective Agreement 2009 remain in effect and that both parties continue to adhere to its terms. The Commission also directed that the union pay Godfreys' costs associated with the application, reflecting the lack of merit in the union's claims.

Orders