Mrs Penelope Vickers

[2016] FWC 3951

[2016] FWC 3951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mrs Penelope Vickers
(AG2016/3497)

COMMISSIONER SPENCER BRISBANE, 17 JUNE 2016

Application for termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011.

Introduction

[1] An application was made by Mrs Penelope Vickers (the Applicant) pursuant to section 225 of the Fair Work Act 2009 (the Act) seeking the termination of an enterprise agreement after its nominal expiry date. The application specifically sought the termination of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 (the 2011 Agreement).

[2] The Applicant sought the termination of the 2011 Agreement on the basis that if the 2011 Agreement was terminated, the General Retail Industry Award 2010 (the Award) would be applicable. The Applicant set out that, in relation to her particular roster, she would receive a greater total amount of remuneration for the rostered work under the Award.

[3] The Full Bench Decision in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo 1(Hart v Coles), set out the reasons relating to the quashing of the 2014 Agreement approval Decision.

Legislation

[4] The relevant provisions of the Act are 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.

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.

Considerations

[5] The matter was brought on for Mention and the Applicant and a range of interested parties sought to be heard, including Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd, the Shop, Distributive and Allied Employees Association (SDA), the Australian Workers’ Union (AWU) and the Australasian Meat Industry Employees Union (AMIEU) Federal and Queensland Branches. These parties provided preliminary comment in relation to the application.

[6] At the time of filing the application, the Full Bench had not yet made the Order allowing the appeal and quashing the decision approving the Coles Store Team Enterprise Agreement 2014-2017 (the 2014 Agreement) as had been foreshadowed by the Full Bench’s Decision. The Full Bench Decision had allowed for a period, after the Decision was issued, for the consideration of issues arising.

[7] The Hart v Coles Full Bench Decision is extracted as follows:

“…If Coles is prepared to give such an undertaking it should advise the Commission by 10 June 2016 and a conference before a Member of this Full Bench will be convened. In the absence of an indication that such an undertaking is proposed to be given we will make an order allowing the appeal and quashing the decision approving of the Agreement.” 2

[8] Therefore, the 2014 Agreement was still in effect at the time of filing and at the time of the Mention.

[9] Accordingly, it was the common position between the parties that the application under s.225 had been made prematurely, in that the 2014 Agreement was still applicable at the time of filing. It was further acknowledged that it was open to the Applicant to make an application, after the Order issued by the Full Bench quashing the 2014 Agreement approval Decision had come into effect.

[10] Subsequent to the Mention, the Applicant confirmed the application would be withdrawn on the basis that the 2014 Agreement remained in effect.

[11] An Order 3 has now been issued by the Full Bench, quashing the approval of the 2014 Agreement. The Order takes effect from 5 July 2016.

[12] This Decision confirms that on a consent basis, the file in this matter will be closed.

COMMISSIONER

 1   [2016] FWCFB 2887

 2   [2016] FWCFB 2887 at [35]

 3   PR581624

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<Price code A, PR581764>