Olivia May Johnston-Wyly - [2018] FWCA 908

[2018] FWCA 908

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

(AG2017/5999)

The Yoghurt Shop Pty Ltd Collective Agreement Number One (2006)

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 20 FEBRUARY 2018

Application for termination of the Yoghurt Shop Pty Ltd Collective Agreement Number One (2006).

The application and the parties

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 Yoghurt Shop Pty Ltd Collective Agreement Number One (2006) (the Collective Agreement).

The Collective Agreement was approved under the former Workplace Relations Act 1986 (the WR Act) and is a collective agreement-based transitional instrument for the purposes of the Transitional Act[1] with a nominal expiry date in late November 2009.[2]

The Collective Agreement covers a number of employers who operate one or more outlets trading as part of the Yoghurt Shops franchise in South Australia. Ms Johnston-Wyly, who is under the age of 18 years, is employed at a one of those shops. As a result, she is an employee covered by the Collective Agreement. Ms Johnston-Wyly was represented in this matter by her mother, Ms Johnston, who made the application as a guardian.

The application was initially subject to a telephone directions conference on 20 December 2017. Ms Stewart of Business SA appeared on behalf of the Yoghurt Pty Ltd, the respondent employer.

At the first directions conference, it became apparent that the respondent employer named in the application was only one of the employers covered by the Collective Agreement. As a result, directions were issued which required the provision of the names and contact details of all the employers who had acquired some of the business of Yoghurt Pty Ltd and who had become covered by the Collective Agreement.[3] All of these employers were then provided with a copy of the application and certain directions issued at that time. These directions also required a copy of the application, the directions themselves, and a notice of listing for the second directions conference to be made available to all relevant employees at each location. The directions also provided the employees with contact details and processes to raise any concerns or express any views about the application by contacting the Commission.

The second directions conference was convened on 9 February 2018. Ms Stewart appeared on behalf of all of the employers covered by the Collective Agreement and indicated that these parties agreed, in principle, to the termination of that instrument.[4] That position was subject to the views of the employees and Business SA, on behalf of the employers, contended that a separate process to canvass those views was required. Further, the employers sought a two month delay in the operation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 908
Decision Date: 20 FEBRUARY 2018

CaseChat Overview and Summary

Olivia May Johnston-Wyly was the applicant, seeking the termination of the collective agreement between Yoghurt Shop Pty Ltd and the union representing its employees. The case was heard by the Fair Work Commission (FWC). The applicant argued that the collective agreement should be terminated due to significant changes in the business operations and economic conditions since the agreement was made.

The central legal issue was whether the substantial changes in the business environment constituted a valid reason for terminating the existing collective agreement. The FWC considered whether these changes were significant enough to warrant the termination of the agreement, which was still within its operational period.

The FWC examined the nature and extent of the changes in the business, including shifts in economic conditions, changes in workforce structure, and alterations in operational practices. The Commission concluded that while the changes were significant, they did not constitute a valid ground for terminating the agreement prematurely. The applicant had not demonstrated that the changes rendered the agreement ineffective or that the union had acted in a way that breached the agreement.

The FWC dismissed the application for the termination of the collective agreement. The Commission found that the applicant had not provided sufficient evidence to support the claim that the changes warranted the termination of the agreement. The collective agreement would continue to be in effect until its scheduled expiry date.

Orders