Louise Nominees Pty Ltd

[2011] FWA 3257

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity

Louise Nominees Pty Ltd
(AG2011/906)

(AG2011/907)

(AG2011/908)

(AG2011/909)

COMMISSIONER CLOGHAN

PERTH, 27 MAY 2011

[1] These are applications by Louise Nominees Pty Ltd (“the Employer”) to Fair Work Australia (FWA) to vary transitional instruments.

[2] The transitional instruments are:

Louise Nominees Collective Employment Agreement - Harvey Supa IGA AC303043 (Application AG2011/906).

Louise Nominees Collective Employment Agreement - Waroona IGA AC303044 (Application AG2011/907).

Louise Nominees Collective Employment Agreement [Paraburdoo] AC325966 (Application AG2011/908).

Louise Nominees Collective Employment Agreement [Dunsborough] AC325066 (Application AG2011/909).

[3] The applications are made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[4] In addition to the application, Mr Lou Sgambelluri gave oral evidence that, as the Applicant’s representative in these proceedings, he has been involved with the stores subject of the applications for 43 years.

[5] The stores subject of the applications could be described as “general country stores” catering for a wide variety of goods. The stores are located in Harvey, Waroona, Paraburdoo and Dunsborough in Western Australia and comprise of a supermarket, liquor store, garden centre and electrical store on the one premises.

[6] The Harvey collective agreement provides that it is made between the Applicant and “the employees of Harvey Supa IGA of 80 Uduc Rd Harvey”. For reasons unknown to the Tribunal, another Commonwealth organisation has advised the Applicant that the collective employment agreement is not applicable to employees employed in a separately branded part of the premises at 80 Udoc Road, Harvey.

[7] I am satisfied from the evidence of Mr Sgambelluri that the intention of the parties to the collective employment agreement was that it apply to the entire facility; all of the employees in the integrated business at 80 Udoc Road, and that all of the employees took part in the voting process.

[8] I am also satisfied that the same ambiguity or uncertainty exists with the remaining collective employment agreements at Waroona, Paraburdoo and Dunsborough where different branded parts of an integrated country general store exist and are carried out by the Employer.

[9] In conclusion and in accordance with Item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, paragraph one (1) of each of the collective employment agreements in paragraph [2] of this Reasons for Decision be varied and the following inserted:

“THIS COLLECTIVE EMPLOYMENT AGREEMENT is made between Louise Nominees Pty Ltd of 80 Udoc Road Harvey and its employees engaged in or in connection with the wholesale or retail sale of goods in the town of Harvey, Western Australia” (Application AG2011/906).

“THIS COLLECTIVE EMPLOYMENT AGREEMENT is made between Louise Nominees Pty Ltd of 80 Udoc Road Harvey and its employees engaged in or in connection with the wholesale or retail sale of goods in the town of Waroona, Western Australia” (Application AG2011/907).

“THIS COLLECTIVE EMPLOYMENT AGREEMENT is made between Louise Nominees Pty Ltd of 80 Udoc Road Harvey and its employees engaged in or in connection with the wholesale or retail sale of goods in the town of Paraburdoo, Western Australia” (Application AG2011/908).

“THIS COLLECTIVE EMPLOYMENT AGREEMENT is made between Louise Nominees Pty Ltd of 80 Udoc Road Harvey and its employees engaged in or in connection with the wholesale or retail sale of goods in the town of Dunsborough, Western Australia” (Application AG2011/909).

[10] The variations operate from the respective dates when the agreements in paragraph [2] were registered.

COMMISSIONER

Appearances:

Mr G. McCorry for the Applicant

Hearing details:

2011:

Perth

23 May

Printed by authority of the Commonwealth Government Printer

Louise Nominees Pty Ltd applied to Fair Work Australia for variations to four collective employment agreements. The agreements related to the employees of stores in Harvey, Waroona, Paraburdoo, and Dunsborough. The Employer sought to clarify the scope of the agreements to ensure they applied to all employees of the integrated business at each location. The issue before Commissioner Claughan was whether the agreements should be varied to remove ambiguity regarding their applicability to all employees of the integrated business.

Commissioner Claughan accepted the evidence of Mr Lou Sgambelluri, the Employer's representative, that the agreements were intended to cover all employees at each location. The Commissioner noted that another Commonwealth organisation had advised the Employer that the agreements did not apply to some employees. However, the Commissioner found that all employees had participated in the voting process and that the agreements were intended to cover the entire facility and all employees. The Commissioner concluded that the agreements should be varied to clarify their scope and applicability to all employees engaged in or connected with the sale of goods at each location.

The Commissioner varied the collective employment agreements to insert a new clause clarifying that the agreements applied to all employees engaged in or connected with the sale of goods in the relevant town. The variations were to operate from the dates when the agreements were registered. The Commissioner's decision provided clarity for the Employer and its employees regarding the scope of the collective employment agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established