Olivia May Johnston-Wyly

[2021] FWCA 5193

[2021] FWCA 5193

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

Olivia May Johnston-Wyly
(AG2021/6512)

THE RUGLESS MANAGEMENT PTY LTD COLLECTIVE AGREEMENT NUMBER ONE (2009)

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 23 AUGUST 2021

Application for termination of the Rugless Management Pty Ltd Collective Agreement Number One (2009).

[1] This decision concerns an application by Ms Olivia May Johnston-Wyly pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), and as a consequence, s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Rugless Management Pty Ltd Collective Agreement Number One (2009) (the Collective Agreement).

[2] A hearing by telephone was conducted in this matter on 23 August 2021. The Applicant represented herself and was assisted by her mother, Ms Johnston. Ms Dunn of DMAW Lawyers appeared for Rugless Management Pty Ltd (Rugless Management), with permission 1 with Mr Rugless and Mr Ball. Rugless Management did not oppose the application. At the conclusion of that hearing, I expressed my intention to terminate the Collective Agreement and indicated that I would subsequently provide a written decision.

[3] The Collective Agreement was approved under Part 8 of the Workplace Relations Act 1996 (Cth) by the Workplace Authority 2and is a collective agreement-based transitional instrument for the purposes of the Transitional Act3 with a nominal expiry date 5 years after approval4. This means, in effect, that the Collective Agreement remained in force under the terms of the FW Act, subject to certain overriding provisions including the National Employment Standards and the minimum base rates provide by any modern award covering the parties. In this case, the General Retail Industry Award 2020 (GRI Award) covers the parties, although it does not presently apply to them due to the continued operation of the Collective Agreement.5

[4] Item 16 of Schedule 3 of the Transitional Act provides that an agreement of this kind may be terminated by the Commission under Part 2-4 of the FW Act.

[5] Subdivision D of Division 7 of Part 2-4 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.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] The application was accompanied by a statutory declaration of Ms Johnston-Wyly, the Applicant, relevantly setting out the grounds for the application to terminate the Collective Agreement. Those grounds included contentions to the effect of the following:

•  The Collective Agreement is outdated and the terms and conditions have fallen below the minimum terms and conditions of the GRIA;

•  The buy-out of penalty rates has been absorbed by the base rates of pay no longer compensates for lower penalty rates, leaving employees working evenings, Saturdays, Sundays and public holidays worse off than under the GRI Award;

•  The casual loading in the Collective Agreement is below that of the GRI Award and this disadvantages Junior and casual staff;

•  The Collective Agreement would not meet the conditions of the Better Off Overall Test (BOOT); and

•  The Respondent employer is not seeking to negotiate a new Enterprise Agreement.

[7] Given the status of the Collective Agreement, the Applicant is entitled to apply for its termination under s.225 of the FW Act. That is, although the precise nominal expiry date is not known, the Collective Agreement has now operated for many years after that latest possible expiry date 6 and the Commission can safely proceed on the basis that it has passed that date.

[8] In the lead up to the hearing of this matter, directions were issued requiring the Respondent to ensure that any affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement. The Commission was not advised of any affected employee, save for the Applicant, wishing to make a contribution. I am satisfied that the employees concerned do not oppose the application.

[9] I am satisfied that the thrust of Ms Johnston-Wyle’s position is correct and that this supports the granting of the application. The extent of disadvantage for the employees does however depend upon the nature of their rosters and the degree of work on Sundays and at other times. Further, I understand that the employer has, as required by the FW Act, applied the “base” rates for the GRI Award to the different “loaded” penalty rates of the Collective Agreement. Rugless Management has also confirmed that the majority, if not all, of the employees would not be disadvantaged by the termination of the Collective Agreement.

[10] I observe that the statutory environment in which the Collective Agreement now operates is significantly different to that in which it was approved. The continued operation of the Collective Agreement also prevents the full legal application of the safety net GRI Award. 7

[11] Employees will not be disadvantaged by the termination of the instrument and the formal conclusion of the Collective Agreement is not opposed by the Respondent employer.

[12] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Collective Agreement. I am also satisfied that it is appropriate in all of the circumstances, including having regard to the views of the relevant parties, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Collective Agreement.

[13] Rugless Management sought a relatively short delay to enable it to make the consequential adjustments including to its payroll and roster arrangements to prepare for the application of the GRI Award. This was not opposed by Ms Johnston-Wyly.

[14] The Collective Agreement is terminated, and the termination will take effect on and from 11:59 pm on 26 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AC324273  PR733055>

 1 Section 596 of the FW Act.

 2   The Workplace Authority was an Australian Government Statutory Agency in existence from 1 July 2007 to 1 July 2009.

 3 Item 2(5)(c)(i) of Schedule 3 of the Transitional Act.

 4   The exact date for the nominal expiry operates by reference to the filing receipt issued by the Employment Advocate, which is not before the Commission.

 5 s.47 and s.48 of the FW Act.

 6   The Collective Agreement was approved by no later than 1 July 2009.

 7 Item 28 of Schedule 3 of the Transitional Act – the Collective Agreement prevails over the modern – subject to the minimum standards of the FW Act.