Pham United Pty Ltd T/A Midland Supa IGA

[2019] FWC 7441

[2019] FWC 7441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Pham United Pty Ltd T/A Midland Supa IGA
(AG2019/2554)

Retail industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 OCTOBER 2019

Application for termination of the Midland Supa IGA and SDA Agreement 2012 – application dismissed.

[1] This decision concerns an application made by Pham United Pty Ltd T/A Midland Supa IGA (the Applicant) on 12 July 2019 for the termination of the Midland Supa IGA and SDA Agreement 2012 1(the Agreement) under s 225 of the Fair Work Act 2009 (the Act).

[2] It is observed that the representative for the Applicant, a Mr Christopher Straughan, HR Director, had in addition filed an application to terminate the Huntingdale IGA and SDA Agreement 2012 2 under s 225. While that application is not dealt with in this decision, reference to this other application is made because the correspondence from Chambers, at times, addressed Mr Straughan about the deficiencies in both applications.

[3] Section 225 of the Act allows an employer to apply to the Commission for the termination of an enterprise agreement that has passed its nominal expiry date. However, the Commission must terminate the enterprise agreement, only in circumstances where the Commission is satisfied that it is not contrary to the public interest to do so and it is appropriate. 3 In determining the appropriateness of the termination the Commission takes into account all the circumstances including:

(a) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(b) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

Background

[4] On 12 July 2019, the Commission received an email from Mr Staughan, stating ‘[P]lease see attached application to have the enterprise agreements terminated immediately. We will then refer our employees back to the general retail award.’ The application was filed absent a Form F24C Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date (Statutory Declaration). By email dated 16 July 2019, the Applicant was requested to complete a Statutory Declaration.

[5] Again, on 25 July 2019, the Applicant was informed that the accompanying Statutory Declaration had not been provided and that no further action would be taken regarding the application until the Statutory Declaration had been received. The Applicant was forewarned that should the Statutory Declaration not be forthcoming by 2 August 2019, the determination would be based upon the material on file, which would likely result in the application being dismissed.

[6] On 1 August 2019, Chambers sent an email to the Applicant noting that no response had been forthcoming, and the Applicant was again invited to make any submissions it had regarding the issues identified, by 2 August 2019.

[7] On 16 August 2019, Chambers issued a further email referring to the email dated 2 August 2019, and the requirement to provide the Statutory Declaration, and extending the deadline to 20 August 2019, in which to file the aforementioned evidence.

[8] On 16 August 2019, Chambers received the Statutory Declaration. It was underwhelming. The name of the agreement at question 1.2 of the Statutory Declaration stated ‘Huntingdale IGA’. Question 2.1 which requires an applicant to set out the matters that they believe make the termination of the agreement not contrary to the public interest, was responded to with ‘[W]e would like to work under the general retail award’. Having confirmed that employees were covered by the Agreement, Question 2.3 of the Statutory Declaration traversed what effect the termination of the Agreement would have on both employer and employee. The note to this question refers to s 226 of the Act, requiring the Commission to consider the circumstances of the parties covered by the enterprise agreement including the likely effect of the termination on the parties. The response received – ‘[W]e would like to work under the general retail award.’

[9] By email dated 13 September 2019, Chambers informed both the Shop, Distributive and Allied Employees Association, who was covered by the Agreement, and the Applicant, that the information provided was inadequate to permit a decision to be made regarding the application. Directions were thereafter issued on 13 September 2019, regarding the filing of materials and the relevant sections of the Act were provided. The Applicant was directed to file materials by 20 September 2019 with its reply materials due by 27 September 2019. By 9 October 2019, no materials had been provided and a reminder was sent, with a deadline set for materials to be provided by 10 October 2019.

[10] On 9 October 2019, a response to Chambers’ earlier email that day was received by Mr Straughan who stated, ‘I have followed instructions and submitted the documents twice and see no reason why these agreements cannot be cancelled. Can you please clarify why these agreements cannot be cancelled as the reasoning in points 225 and 226 of the Act have already been covered.’

[11] Chambers responded to Mr Straughan’s email dated 9 October 2019. The email stated, among other points, that:

The Deputy President has reviewed the materials submitted and considers them insufficient for her to make a determination on whether to terminate the Agreement. Hence why she provided you with the opportunity to provide further materials.

Therefore, just so we are clear – as your application currently stands the Deputy President’s preliminary view is that she would dismiss the applications on the basis that they have no reasonable prospect of success.

It follows that the Applicant is directed to file with Chambers the following materials by 16:00hrs (AWST) on Monday, 14 October 2019:

1. an outline of submissions, witness statements (if any) and any other documentary evidence on which it seeks to rely upon in support of its applications (separate for each application);

2. a comparative table between the terms and conditions the employees would receive if the Agreement did not cover and apply to them, in comparison to the benefits they are currently entitled to under the Agreement;

3. a summary of the abovementioned comparative table (including differences in wage rates); and

4. evidence of the views of the employees regarding the termination of the Agreement.

The Deputy President directs the Applicant to reconsider s 226 of the Act when preparing its materials, and trusts that the more detailed directions may assist the Applicant.

[12] No response was forthcoming from the Applicant. It is likely unsurprising that consideration now turns to the legislative provisions regarding the dismissal of the Applicant’s application, rather than the termination of its Agreement.

Whether to dismiss the application

[13] Under s 587 of the Act, the Commission is provided with authority to dismiss an application of its own initiative or on application if:

a) the application is not made in accordance with the Act; or

b) the application is frivolous or vexatious; or

c) the application has no reasonable prospects of success.

[14] Having informed the Applicant on multiple occasions that the materials filed were inadequate to allow a determination to be made regarding its application, no further material of utility was filed. Further, the material which had been filed was painfully poor of the requisite detail required. Whilst directions were provided repeatedly, and the Applicant’s representative purported to be a Director of Human Resources, regrettably on this occasion there is but only one conclusion.

Conclusion

[15] In accordance with s 587 of the Act, as the requirements of s 226 of the Act have not been met; the application is dismissed. This decision is accompanied by an Order 4 dismissing the application.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE400558  PR713787>

 1   [2013] FWCA 1976; AE400558.

 2   [2013] FWCA 1979; AE400561.

 3   Fair Work Act 2009 (Cth) s 226.

 4   PR713786.