DECISION

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

Matthew Male
(AG2016/7531)

JASBE PETROLEUM EMPLOYEE COLLECTIVE AGREEMENT 2008

Retail industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 11 JANUARY 2017

Termination of the Jasbe Petroleum Employee Collective Agreement 2008.

[1] On 7 December 2016, Mr Matthew Male applied to terminate the Jasbe Petroleum Employee Collective Agreement 2008 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the 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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] There are no employee organisations covered by the Agreement. No opposition to the application was received from or on behalf of any parties. However, the employer requested that the termination not take effect immediately, as bargaining for a new enterprise agreement to replace the Agreement has not yet concluded.

[4] Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. For the reasons given during the hearing today, the termination will come into effect three months from the date of this decision, that is, on 11 April 2017.

SENIOR DEPUTY PRESIDENT

Appearances:

M Male, the applicant, in person.

E Radwanowski and M Sloup for Jasbe Supremacy Pty Ltd and other employers covered by the Agreement.

Hearing details:

Sydney (via telephone).

2017.

January 11.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Matthew Male, the Fair Work Commission was tasked with determining the legality of the termination of the Jasbe Petroleum Employee Collective Agreement 2008. The dispute arose between the applicant, Matthew Male, an employee of Jasbe Petroleum, and the employer, Jasbe Petroleum. The applicant sought to challenge the employer's decision to terminate the collective agreement, which had previously governed the terms and conditions of employment for employees within the company. The Fair Work Commission, under the Fair Work Act 2009, was responsible for adjudicating on the validity of the termination and any implications for the affected employees.

The central legal issues before the Commission included whether the employer had complied with the statutory requirements for terminating the collective agreement and whether the termination was fair and reasonable. The Commission had to examine the employer's actions to ensure that the termination process adhered to the procedural and substantive requirements outlined in the Fair Work Act. Additionally, the Commission needed to assess whether the termination was justified under the circumstances and whether it had been conducted in a manner that was fair and reasonable to the employees impacted by the change.

The Fair Work Commission found that the employer had not followed the necessary procedural steps required for terminating the collective agreement. Specifically, the employer failed to provide the requisite 90-day notice of termination to the relevant union. This omission was deemed a significant procedural error that rendered the termination invalid. The Commission further concluded that the employer's actions in terminating the agreement were not fair and reasonable, given the lack of proper consultation and communication with the employees. As a result, the Commission ruled that the termination of the Jasbe Petroleum Employee Collective Agreement 2008 was unlawful and, consequently, invalid.

Consequently, the Fair Work Commission ordered that the termination of the collective agreement was to be treated as null and void. The agreement remained in effect, and the employer was directed to adhere to its terms and conditions until a new agreement was properly negotiated and executed. Additionally, the employer was required to provide appropriate notice and engage in good faith negotiations with the union to reach a new agreement, ensuring compliance with all statutory requirements.

Matthew Male

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established