Mr Harshana Seneviratne

[2016] FWCA 5150

[2016] FWCA 5150

FAIR WORK COMMISSION

DECISION

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

Mr Harshana Seneviratne
(AG2016/1680)

FARMER JACKS SUBIACO COLLECTIVE AGREEMENT

Retail industry
DEPUTY PRESIDENT BINET	PERTH, 9 AUGUST 2016

Application for termination of the Farmer Jacks Subiaco Collective Agreement.

[1] Mr Harshana Seneviratne(Mr Seneviratne), in his capacity as an employee of Dalewing Pty Ltd T/A Jack’s Wholefoods and Groceries (Jack’s Wholefoods), has made an application (Application) to the Fair Work Commission (FWC) to terminate the Farmer Jacks Subiaco Collective Agreement (Agreement).

[2] The Agreement was lodged in 2008 with the Australian Government Workplace Authority and has a nominal expiry date of 2013 (5 years from the date it was lodged). The exact date is unknown.

[3] No employee organisations are a party to the Agreement.

[4] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Agreement is a collective agreement-based transitional instrument. By virtue of Item 16 the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[5] Section 226 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.”

[6] Mr Seneviratne provided a statutory declaration in support of the Application for the termination of the Agreement.

[7] On 13 July 2016, Mr Seneviratne was directed to file an outline of submissions (Applicant’s Submissions) as to why the Agreement should be terminated and why it was not contrary to the public interest to do so, as well as any evidence on which he relies in support of the Application, including evidence of the views of employees about the termination of the Agreement and why employees covered by the Agreement are better off overall under the applicable Award or Agreement (Directions).

[8] The Applicant’s Submissions included a comparison table which set out the terms which differ between the Agreement, the Award and an Agreement from another Farmer Jack’s store. Mr Seneviratne submitted that the Agreement should be terminated because it provides for below Award pay rates on Saturdays, Sundays and Public Holidays, no overtime pay and no allowance for those performing supervisory roles. He also pointed out that the rates of pay under the Agreement are lower than those at other Farmer Jack’s stores.

[9] On 18 July 2016, Mr Seneviratne filed, in addition to the Applicant’s Submissions, evidence of the employees’ views regarding the termination of the Agreement (in the form of personal statements from 14 employees) and a petition to terminate the Agreement signed by 25 employees. All evidence tendered supported the termination of the Agreement.

[10] The Directions also required Jack’s Wholefoods to file an outline of submissions in response to the Application. On 27 July 2016, Jack’s Wholefoods filed submissions which confirmed that:

(a) Jack’s Wholefoods did not seek to oppose the Application and subsequently agrees to the termination of the Agreement;

(b) there are approximately 51 employees covered by the Agreement;

(c) in the event the Agreement is terminated, the Award will apply to both Jack’s Wholefoods and its employees; and

(d) Jack’s Wholefoods does not believe it is contrary to the public interest to terminate the Agreement.

[11] The Directions further directed Jack’s Wholefoods to provide a copy of the Application, both parties’ materials and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the Commission by close of business on Wednesday 3 August 2016.

[12] On 28 July 2016, Jack’s Wholefoods filed a statutory declaration of Mr Fernando Neves confirming that a copy of the Application, both parties’ materials and the Directions had been provided to all employees currently covered by the Agreement.

[13] No applications to be heard were received by any employees of Jack’s Wholefoods on or before close of business, Wednesday 3 August 2016.

[14] Given the evidence that the rates of pay under the Agreement are below the applicable Award rates, the express support for the termination of the Agreement by both the employees and the employer, and the absence of any opposition to the termination of the Agreement, I consider it appropriate to terminate the Agreement.

[15] The termination of the Agreement will come into effect on the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR583463>