Mount Barker Co-operative Limited

[2018] FWCA 3778

[2018] FWCA 3778

The attached document replaces the document previously issued with the above code on 27 June 2018.

An error with the numbering of the paragraphs in the document has been corrected.

Hannah Spivey

Associate to Deputy President Binet

Dated 28 June 2018.

[2018] FWCA 3778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Mount Barker Co-operative Limited
(AG2018/1941)

MOUNT BARKER CO-OPERATIVE LIMITED ENTERPRISE AGREEMENT 2014

Retail industry
DEPUTY PRESIDENT BINET	PERTH, 27 JUNE 2018

Application for termination of the Mount Barker Co-Operative Limited Enterprise Agreement 2014.

[1] Mount Barker Co-operative Limited (Mount Barker Co-op) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Mount Barker Co-operative Limited Enterprise Agreement 2014 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 15 May 2016.

[3] The parties to the Agreement are Mount Barker Co-Op and employees of Mt Barker Co-Op employed in the classifications contained in clause 4.1 of the Agreement (Employees).

[4] There are no employee organisations covered by the Agreement.

[5] Section 225 of the FW Act states:

“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.”

[6] Section 226 of the FW Act states:

“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.”

[7] The Application has been filed by Ms Deborah Murphy, Group Financial Controller at Mount Barker Co-op (Ms Murphy) on behalf of Mount Barker Co-op.

[8] Ms Murphy has provided a Statutory Declaration (Murphy Declaration) in support of the Application. The Murphy Declaration states that the parties to the Agreement are not seeking to negotiate a new enterprise agreement, and if the Agreement is terminated, Employees will instead be covered by the General Retail Industry Award 2010 (Award).

[9] The Murphy Declaration states that rates of pay contained in the Agreement have fallen below the ordinary rates of pay contained in the Award and that the Employees would be better off overall under the Award.

[10] The Murphy Declaration further states that Mount Barker Co-op wishes to establish standardisation across its enterprise by bringing its retail operations under the Award. The Murphy Declaration states that a notice was distributed to all Employees regarding the intention to terminate the Agreement on 7 May 2018, and information sessions were held on 8 May 2018 and 9 May 2018 regarding the implications. Employee attendance records at the information sessions were filed as an Annexure to the Application. The Murphy Declaration states that as at 10 May 2018, Mount Barker Co-op had not received any strong negative feedback from Employees regarding termination of the Agreement.

[11] The Murphy Declaration provides a list of ways in which full-time, part-time, and casual employees are disadvantaged by having their employment covered by the Agreement, rather than the Award. These disadvantages relate to a lack of provision for penalty rates, overtime penalties, and allowances for higher duties in the Agreement, where such penalties and allowances are provided for in the Award.

[12] The Directions issued on 31 May 2018 (Directions) required Mount Barker Co-op to provide a copy of the Application, the Murphy Declaration and copy of the Directions to all Employees. Employees were invited to contact my Chambers by 14 June 2018 if they wished to be heard in relation to the Application. No correspondence was received from any Employee by this date.

Consideration

[13] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[14] No opposition to the Application was received for or on behalf of any employees.

[15] Based on the material contained in the Murphy Declaration filed with the Application there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[16] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[17] The termination will come into effect from 27 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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