M & D Nikitaras Pty Ltd T/A Hill Street Grocer

[2020] FWCA 5723

[2020] FWCA 5723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

M & D Nikitaras Pty Ltd T/A Hill Street Grocer
(AG2020/2832)

HILL STREET COLLECTIVE AGREEMENT 2008

Retail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 30 OCTOBER 2020

Application for termination of the Hill Street Collective Agreement 2008.

[1] M & D Nikitaras Pty Ltd trading as Hill Street Grocer (the Applicant) has applied to terminate its Hill Street Collective Agreement 2008 1(the Agreement) under the Fair Work Act 2009 (Cth) (the FW Act). The Agreement covers the Applicant’s retail business of Hill Street West Hobart and its employees engaged in the classifications described at clause 3 of the Agreement. There is no union covered by the Agreement.

[2] The Agreement was made under the Workplace Relations Act 1996 (Cth). It was lodged with the Workplace Authority on 12 June 2008, approved by the Workplace Authority on 18 November 2008 and commenced operating on 25 November 2008. 2 It has a nominal expiry date of 12 June 2013, being five calendar years from the date of lodgement.3 The Agreement is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The effect of this is that the termination provisions at Subdivision D of Division 7 of Part 2-4 of the FW Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. That is, an application may be made to terminate the Agreement under s.225 of the Fair Work Act.

[3] Ms Richards (Group Manager, People and Culture of the Applicant) provided a statutory declaration in support of the application, in which she declared that termination of the Agreement is necessary, in summary because its terms and conditions are:

a) out of date and do not provide adequate conditions for employees; and
b) unduly rigid and constrain the operations of the Applicant, including to prevent consistency of terms and conditions across the branches within the group of related entities.

[4] Ms Richards also declared that the employees covered by the Agreement were informed that the terms of the General Retail Industry Award 2010 will apply to their employment if the Agreement is terminated and about what this means to them including calculations of earnings based on rosters to be worked. The explanatory materials were provided to the Commission.

[5] On 28 September 2020, I directed the Applicant to provide employees covered by the Agreement with a copy of the application, notice of listing and directions that employees could send to my chambers any views they may have as to the application to terminate the Agreement by 16 October 2020. The Applicant confirmed that it complied with those directions and provided the relevant correspondence to the Commission.

[6] The Commission received correspondence from one employee. No employees opposed the termination of the Agreement.

[7] In the circumstances, I have decided to determine the application on the papers.

[8] Having regard to the materials before the Commission and the matters I am required to take into account pursuant to s.226 of the FW Act:

(a) I am satisfied that termination of the Agreement is not contrary to the public interest; and
(b) I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including the views of the employer and the employee who chose to provide their views in relation to the application.

[9] The termination will operate from 12:00am on 2 November 2020.

DEPUTY PRESIDENT

 1   Agreement ID AC314877.

 2   See declaration receipt dated 12 June 2008 and approval letter dated 18 November 2008 for Agreement number 084996875; and notwithstanding clause 6 of the Agreement, which purports that commencement is from the date of lodgement.

 3   See clause 6 of the Agreement.

Printed by authority of the Commonwealth Government Printer

<AC314877 PR723950>