Madeleine Hicks
[2022] FWCA 1375
•27 MAY 2022
| [2022] FWCA 1375 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Madeleine Hicks
(AG2021/8711)
Tully Pty Ltd Employee Collective Agreement 2008
| Retail industry | |
| COMMISSIONER MIRABELLA | MELBOURNE, 27 MAY 2022 |
Application for termination of the Tully Pty Ltd Employee Collective Agreement 2008.
This decision concerns an application by Ms Madeleine Hicks pursuant to s.225, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act) as it applies under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Tully Pty Ltd Employee Collective Agreement 2008 (the Agreement). The Agreement has a nominal expiry date of 5 years from the date the application for approval of the Agreement was lodged.
The Agreement is a collective agreement-based transitional instrument[1] for the purposes of the Transitional Act. This means, in effect, that the Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards and the minimum base rates provided by any modern award covering the parties. In this case, the General Retail Industry Award 2010 (GRIA Award) covers the parties although it does not presently apply to them due to the continued operation of the Agreement.[2]
The Agreement presently covers and applies to the employer cited in the Agreement, Tully Pty Ltd (Tully), and its employees, including Ms Hicks. The Agreement operates to provides certain terms and conditions of employment at a Bakers Delight franchise conducted by Tully in Bentleigh East in Victoria. Mr Gary Iverson is, in effect, the store owner.
The application was supported by a statutory declaration of Ms Hicks dated 3 December 2021. Ms Hicks declared that the Agreement nominally expired in 2013 and says that it is out of date. She says it does not provide for contemporary employee entitlements such as penalty rates and defined meal breaks. However, Ms Hicks did note that meal breaks are required to be provided under the Agreement but that employees do not receive them at the Bentleigh East store. Ms Hicks says that she had made a request to a representative from Tully for the Agreement to be revisited but that the representative advised her that they believed a new agreement would be disruptive to current work practices.
On 8 December 2021, I directed Ms Hicks to serve a copy of her application, accompanying declaration and correspondence from the Fair Work Commission (Commission) on all relevant parties and provide confirmation to Chambers that this had occurred. I also requested that Ms Hicks amend her declaration to include particulars of the number of employees who will be affected by the proposed termination of the Agreement, any views already obtained by Ms Hicks of those employees, the employer and any employee organisations who will be affected by termination of the Agreement, how employees will be better off overall following the proposed termination of the Agreement, and what instrument will provide employees with their entitlements if the Agreement were to be terminated.
On 9 December 2021, Ms Hicks provided these particulars as follows:
· Ms Hicks advised that 59 employees will be affected by the proposed termination of the Agreement;
· Ms Hicks said that employees will be better off if the Agreement were terminated because employees would be able to vote on a new agreement. She says she would like this new agreement to provide for rest breaks and penalty rates for employees, as well as for staff to have the option of part-time employment with regular shifts or casual employment;
· Ms Hicks said that employees want the Agreement to be terminated because its nominal expiry date was 8 years ago, the majority of employees who were initially covered by the Agreement are no longer employed with Tully, employees do not receive rest breaks or penalty rates and staff are generally employed part-time; however, their shifts regularly change without consultation. Ms Hicks did not provide any evidence of these views said to have been obtained from the employees who will be affected by the proposed termination of the Agreement; and
· Ms Hicks provided screenshots of email correspondence between her and Mr Iverson in which Mr Iverson indicated his support for bargaining for a new Agreement. However, Ms Hicks noted that Mr Iverson later withdrew this support.
On 13 December 2021, Ms Hicks forwarded her application and accompanying statutory declaration to employees said to be covered by the Agreement.
On 14 December 2021, Ms Hicks sent an email to Chambers attaching screenshots of the anonymised views of four employees said to be covered by the Agreement. The employees supported the termination of the Agreement and referred to a number of matters including their wages under the Agreement.
That same day, Mr Iverson wrote to Chambers advising that not all employees who will be affected by the proposed termination of the Agreement have been notified of the application. He also stated that Ms Hicks had made a number of unsubstantiated allegations in regard to the terms and conditions of employment of Tully staff. Mr Iverson also advised that while he would not support the application, he will not oppose it. He requested a transitional period between the making of a decision to terminate the Agreement and the termination date for the Agreement. He requested this transitional period so as to allow the business time to review rosters, operations and the payroll system.
I listed the matter for conference on 24 February 2022. At the conference, Mr Iverson confirmed that not all employees covered by the Agreement had been given the opportunity to provide their views regarding the application. On 25 February 2022, I issued directions for Tully to forward to employees covered by the Agreement an email from Chambers inviting views regarding the application and the likely effect of termination of the Agreement. The employer complied with the directions.
On 1 March 2022, Mr Iverson provided his views regarding the application. He said that he had decided to support the application to terminate the Agreement but reiterated his request for a transitional period to allow Tully time to adequately implement changes which will be required by a transition to the GRIA. He said that this would include changes to bookkeeping and accounting, rostering, operational procedures, policies, productivity and potentially trading hours and product offering. He said that the business is suffering from staff shortages which is already impacting the productivity of the business.
On 1 March and 7 March 2022, Chambers received correspondence from three employees covered by the Agreement. The correspondence was not copied to Tully as per the directions. The correspondence to Chambers was overwhelmingly in favour of the termination of the Agreement. The responses of employees supporting termination of the Agreement included some irrelevant matters, not appropriate to be considered in this application. Of relevance to this application, employees raised a number of concerns around wages, penalty rates and rest breaks.
On 4 May 2022, Mr Iverson advised Chambers that he believed that 13 July 2022 provided Tully with sufficient time for it to transition from applying the Agreement to applying the GRIA, should the Agreement be terminated. On 6 May 2022, Ms Hicks advised that she accepted this proposed termination date.
Legislative provisions
Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the FW Act 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.
Section 225 of Chapter 2, Part 2-4, Division 7, Subdivision D of the FW Act is 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.”
Section 226 of the FW 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.”
Section 227 of the FW Act provides as follows:
“227 When termination comes into operation”
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
Consideration
Section 225
An employee covered by an agreement may apply under s.225(b) of the FW Act to the Commission for the termination of the Agreement if it has passed its nominal expiry date. The Agreement nominally expired over eight years ago. Further, Ms Hicks declared that she is an employee covered by the Agreement. As such, I am satisfied that Ms Hicks has standing to bring the application under s.225(b) of the FW Act.
Section 226
Based on the material before me, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b), I consider that it is appropriate to terminate the Agreement.
Given my conclusions above, I must terminate the Agreement. In accordance with s.227 of the FW Act, and on the basis of the views of the parties, the termination will take effect from 13 July 2022.
COMMISSIONER
[1] Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.
[2] Sections 47 and 48 of the FW Act.
Printed by authority of the Commonwealth Government Printer
<AC317173 PR740542>
0
0
0