Overflow Townsville Pty Ltd

[2014] FWCA 4244

[2014] FWCA 4244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Sch. 3, Item 15 - Application to terminate collective agreement-based transitional instrument

Overflow Townsville Pty Ltd
(AG2014/6291)

OVERFLOW TOWNSVILLE PTY LTD (THE RETAILERS ASSOCIATION) EMPLOYEE COLLECTIVE AGREEMENT 2009

Retail industry
COMMISSIONER SPENCER	BRISBANE, 10 JULY 2014

Application for termination of the Overflow Townsville Pty Ltd (The Retailers Association) Employee Collective Agreement 2009.

[1] Overflow Townsville Pty Ltd (the Applicant) has made an application pursuant to Item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.222 of the Fair Work Act 2009 (the Act)to terminate the Overflow Townsville Pty Ltd (The Retailers Association) Employee Collective Agreement 2009 (the Agreement).

[2] Item 15 of Schedule 3 of the Transitional Act provides, so far as presently relevant, that:

15  Collective agreement-based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[4] The application to terminate the Agreement was lodged on 3 June 2014. At the outset, I note that the application was filed on the incorrect form. I waive compliance with this requirement.

[5] Section 222(3) of the Act provides that an application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period - within such further period as the FWC allows.

[6] Section 221(1) relevantly provides that, for the purpose of the termination of a single-enterprise agreement, the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

[7] The material filed by the Applicant indicates that the majority of employees voted to approve the termination between 8 and 16 May 2014. The application was not filed until 3 June 2014.

[8] The delay in filing the application can largely be explained by the protracted period over which the voting was conducted, with the Applicant declaring that the voting concluded on 31 May 2014. In all the circumstances, the Commission considers it fair to extend the timeframe for filing the application to 14 days from the date the voting on the termination concluded.

[9] On filing the application, the Commission issued Directions to the Applicant on 6 June 2014 to file material in reference to s.223 of the Act (set out above).

[10] The Applicant filed materials in accordance with these Directions.

Consideration

s.223(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) in relation to the agreement.

[11] Mr David Hall, Managing Director of the Applicant, provided a statutory declaration which outlined the steps taken by the Applicant to inform the employees of the proposal to terminate the Agreement and the effects of the proposed termination of the Agreement on their terms and conditions.

[12] Mr Hall declared that a memo had been sent, via email, to all staff “giving them information on what would happen if they approved the termination.” A copy of this memo was filed by the Applicant in accordance with the Directions.

[13] In support of the application, the Applicant provided witness statements from four employees. The witness statements confirm the employees received the memo on 8 May 2014 and that they were directed to the Fair Work Australia website if further information was required.

s.223(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies.

[14] The Applicant submits that the employees were asked to vote on the termination of the Agreement. The voting commenced on 8 May 2014 and concluded on 31 May 2014. At the conclusion of the voting process, all 33 employees covered by the agreement had cast a valid vote, and 31 of those 33 employees had voted to terminate the agreement.

[15] The Applicant filed copies of all 33 votes submitted by the employees. These copies support the declaration made by Mr Hall that the termination of the Agreement was agreed to by the majority of the employees.

s.223(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

[16] There are no other reasonable grounds for considering that the employees have not agreed to the termination.

s.223(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[17] There are no employee organisations that are covered by the Agreement.

Conclusion

[18] The Commission is satisfied that an application for the termination of a collective agreement-based transitional instrument has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.222(1) of the Act and the application has been made within the timeframe under s.222(3)(b).

[19] The Commission is satisfied that it is appropriate to terminate the Agreement in all the circumstances, having considered the views and circumstances of the Applicant and the employees.

[20] Having considered the material and s.223 of the Act the Agreement must be terminated. The employees will revert to the Award.

[21] The termination will operate from the date of this decision.

[22] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AC325789  PR552449>