Ms Simone Lennox

[2018] FWCA 2112

[2018] FWCA 2112

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

Ms Simone Lennox
(AG2017/5945)

FOOTLONG SUBS EMPLOYMENT SERVICES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT 2007

(CAEN073466554)

Fast food industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 APRIL 2018

Application for termination of the Footlong Subs Employment Services Pty Ltd Employee Collective Agreement 2007.

[1] This decision relates to an application by Ms Simone Lennox (Applicant) under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act) to terminate the Footlong Subs Employment Services Pty Ltd Employee Collective Agreement 2007 (Agreement). The Agreement covers the employer, Footlong Subs Employment Services Pty Ltd (employer), and employees of the employer. The Applicant is represented by the Shop, Distributive and Allied Employees’ Association (SDA).

[2] The Agreement is an instrument that was made under the Workplace Relations Act 1996 and passed its nominal expiry date in 2012. It is a ‘collective agreement-based transitional instrument’ for the purposes of Item 16 of Schedule 3 of the TPCA Act. The effect of this item is that the termination of agreement provisions found in Subdivision D of Division 7, Part 2-4 of the Fair Work Act 2009 (FW Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. In short, an application may be made to terminate the Agreement under s.225 of the FW Act.

[3] Section 225 of the FW Act provides:

“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.”

[4] Section 226 of the Act provides:

“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.”

[5] Ms Julia Fox, National Assistant Secretary of SDA, provided a statutory declaration in support of the application, that the terms and conditions provided in the Agreement had fallen below the minimum terms and conditions of the Fast Food Industry Award 2010 (Award).

[6] The employer initially objected to the application on jurisdictional grounds. Having heard from the parties, and considered their written submissions, I issued a decision on 5 March 2018 dismissing the jurisdictional objections. 1 I then issued directions requiring the employer to file any material that it intended to rely on in opposition to the termination of the Agreement. I also directed the employer to provide employees covered by the Agreement with a copy of my directions and Ms Lennox’s application; the directions indicated that employees could send to my chambers any views they may have as to the application to terminate the Agreement.

[7] In correspondence to my chambers dated 13 March 2018, the employer advised that it no longer objected to the termination of the Agreement. It requested a three week notice period prior to the termination taking effect. The SDA on behalf of the Applicant advised my chambers that it did not oppose the employer’s request.

[8] On 24 March 2018, further to my directions, one employee sent to my chambers a brief email expressing strong support for Ms Lennox’s application, on the basis that the Agreement provided for conditions that were ‘unfair’.

[9] Returning to section 225, I note that at the time of application, Ms Lennox was an employee covered by the Agreement, and therefore had the necessary standing under s.225(b) to bring the application.

[10] Once an application has been validly made, the Commission has an obligation to determine the matter under s.226 of the Act.

[11] Based on the application and the material filed with it, 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 ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me that raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to terminate the Agreement, and I do so.

[12] The termination will operate from 3 May 2018.

DEPUTY PRESIDENT

 1   [2018] FWC 1282

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